Criminal Procedure (Scotland) Act 1995

1995 CHAPTER 46

An Act to consolidate certain enactments relating to criminal procedure in Scotland.

[8th November 1995]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Extent Information

E1 Act extends to Scotland; for sections extending to England and Wales, Northern Ireland and the Isle of Man, see s. 309(3)-(6).

Modifications etc. (not altering text)

C1 Act modified (1.4.1997) by S.I. 1996/3255, reg. 5

C2 Act amended (temp. from 1.4.1996) by 1995 c. 40, ss. 4, 7(2), Sch. 3 Pt. II para. 5

C3 Act extended (S.) (1.4.1996) by 1995 c. 40, ss. 1, 2(2), 7(2)

C4 Act excluded (S.) (1.4.1996) by 1995 c. 39, ss. 46(3), 53(2)

C5 Act construed (S.) (1.4.1996) with 1995 c. 39, ss. 43(2), 53(2)

C6 Act applied (3.7.2001) by S.I. 2001/1701, reg. 17, Sch. 13 para. 14(3);

Act applied (20.11.2002) by Copyright, Designs and Patents Act 1988 (c. 48), ss. 114B(6), 204B(6), 297D(6) (as inserted by Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002 (c. 25), ss. 3, 4, 5; S.I. 2002/2749, art. 2)

Act applied (7.3.2005) by The Electromagnetic Compatibility Regulations 2005 (S.I. 2005/281), reg. 98(3)

Act applied (S.) (5.10.2005) by The Mental Health (Cross border transfer: patients subject to detention requirement or otherwise in hospital)(Scotland) Regulations 2005 (S.S.I. 2005/467), {reg. 46(1)}

Act modified (S.) (6.10.2006) by Animal Health and Welfare (Scotland) Act 2006 (asp 11), ss. 43(1), 55(1); S.S.I. 2006/482, art. 2 (subject to art. 4)

C7 Act modified (12.12.2007) by Animal Welfare Act 2006 (c. 45), ss. 49(1), 68 (with ss. 1(2), 58(1), 59, 60); S.S.I. 2007/519, art. 2

C8 Act modified (S.) (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009, 14.12.2009 and 22.2.2010 for certain purposes, otherwise prosp.) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 62(8), 84; S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

Act: power to apply conferred (S.) (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 64(5), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

Act: power to modify conferred (S.) (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 64(6)(7), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

C9 various regulations applied by 1997 c. 43, Sch. 1 para. 19B (as inserted (1.2.2015) by Offender Rehabilitation Act 2014 (c. 11), s. 22(1), Sch. 3 para. 7 (with Sch. 7 para. 2); S.I. 2015/40, art. 2(u))

C10 Act power to apply (with or without modifications) conferred by 2002 c. 29, s. 118(2B)(c) (as inserted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 19(1)(b), 88(2)(a); S.S.I. 2016/11, reg. 2(d) (with reg. 3))

C11 136(3) applied (31.12.2020) by The Guinea (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/1145), regs. 1(2), 34(4)(a); S.I. 2020/1514, reg. 3(2)

C12 Act modified (5.11.2021) by 1953 c. 28, s. 2(1A) (as inserted by Dogs (Protection of Livestock) (Amendment) (Scotland) Act 2021 (asp 18), ss. 2(1), 7(2) (with s. 2(2)))

Commencement Information

I1 Act wholly in force on 1.4.1996, see s. 309(2)

Part I S Criminal Courts

Jurisdiction and Powers S

The High Court S

1 Judges in the High Court. S

(1) The Lord President of the Court of Session shall be the Lord Justice General and shall perform his duties as the presiding judge of the High Court.

(2) Every person who is appointed to the office of one of the Senators of the College of Justice in Scotland shall, by virtue of such appointment, be a Lord Commissioner of Justiciary in Scotland.

(3) If any difference arises as to the rotation of judges in the High Court, it shall be determined by the Lord Justice General, whom failing by the Lord Justice Clerk.

(4) Any Lord Commissioner of Justiciary may preside alone at the trial of an accused before the High Court.

(5) Without prejudice to subsection (4) above, in any trial of difficulty or importance it shall be competent for two or more judges in the High Court to preside for the whole or any part of the trial.

2 Fixing of High Court sittings. S

(1) The High Court shall sit at such times and places as the Lord Justice General, whom failing the Lord Justice Clerk, may, after consultation with the Lord Advocate, determine.

(2) Without prejudice to subsection (1) above, the High Court shall hold such additional sittings as the Lord Advocate may require.

(3) Where an accused has been cited to [F1 , or otherwise required to attend, a diet to be held at any] sitting of the High Court, the prosecutor may, at any time before the commencement of [F2 the diet or, in the case of a trial diet, the trial] , apply to the Court to transfer the case to [F3 a diet to be held at a sitting of the Court in another place] ; and a single judge of the High Court may—

(a) after giving the accused or his counsel an opportunity to be heard; or

(b) on the joint application of all parties,

make an order for the transfer of the case.

[F4 (3C) The judge may proceed under subsection (3) above on a joint application of the parties without hearing the parties and, accordingly, he may dispense with any hearing previously appointed for the purpose of considering the application.]

(4) Where no [F5 diets have been appointed to be held at] a sitting of the High Court or if it is no longer expedient that a sitting should take place, it shall not be necessary for the sitting to take place.

(5) If [F6 in any case a diet remains appointed to be held at] a sitting which does not take place in pursuance of subsection (4) above, subsection (3) above shall apply in relation to the transfer of any other such case to another sitting.

[F7 (6) For the purposes of subsection (3) above—

(a) a diet shall be taken to commence when it is called; and

(b) a trial shall be taken to commence when the oath is administered to the jury.]

Textual Amendments

F1 Words in s. 2(3) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 2(a)(i); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F2 Words in s. 2(3) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 2(a)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F3 Words in s. 2(3) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 2(a)(iii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F4 S. 2(3C) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 2(b); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F5 Words in s. 2(4) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 2(c); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F6 Words in s. 2(5) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 2(d); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F7 S. 2(6) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 2(e); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

Solemn courts: general S

3 Jurisdiction and powers of solemn courts. S

(1) The jurisdiction and powers of all courts of solemn jurisdiction, except so far as altered or modified by any enactment passed after the commencement of this Act, shall remain as at the commencement of this Act.

(2) Any crime or offence which is triable on indictment may be tried by the High Court sitting at any place in Scotland.

(3) The sheriff shall, without prejudice to any other or wider power conferred by statute, not be entitled, on the conviction on indictment of an accused, to pass a sentence of imprisonment for a term exceeding [F8 five years].

(4) Subject to subsection (5) below, where under any enactment passed or made before 1st January 1988 (the date of commencement of section 58 of the M1 Criminal Justice (Scotland) Act 1987) an offence is punishable on conviction on indictment by imprisonment for a term exceeding two years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding two years, it shall be competent for the sheriff to impose a sentence of imprisonment for a term exceeding two but not exceeding [F9 five years].

[F10 (4A) Subject to subsection (5) below, where under any enactment passed or made after 1st January 1988 but before the commencement of section 13 of the Crime and Punishment (Scotland) Act 1997 (increase in sentencing powers of sheriff courts) an offence is punishable on conviction on indictment for a term exceeding three years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding three years, it shall be competent for the sheriff to impose a sentence of imprisonment for a term exceeding three but not exceeding five years.]

(5) Nothing in subsection (4) above shall authorise the imposition by the sheriff of a sentence in excess of the sentence specified by the enactment as the maximum sentence which may be imposed on conviction of the offence.

(6) Subject to any express exclusion contained in any enactment, it shall be lawful to indict in the sheriff court all crimes except murder, treason, rape [F11 (whether at common law or under section 1(1) of the Sexual Offences (Scotland) Act 2009 (asp 9)), rape of a young child (under section 18 of that Act)] and breach of duty by magistrates.

Textual Amendments

F8 Words in s. 3(3) substituted (1.5.2004) by 1997 c. 48, ss. 13(1)(a), 65(2); S.S.I. 2004/176, art. 2, (with art. 3)

F9 Words in s. 3(4) substituted (1.5.2004) by 1997 c. 48, ss. 13(1)(b), 65(2); S.S.I. 2004/176, art. 2, (with art. 3)

F10 S. 3(4A) inserted (1.5.2004) by 1997 c. 48, ss. 13(1)(c), 65(2); S.S.I. 2004/176, art. 2, (with art. 3)

F11 Words in s. 3(6) inserted (1.12.2010) by Sexual Offences (Scotland) Act 2009 (asp 9), ss. 61, 62(2), Sch. 5 para. 2(2); S.S.I. 2010/413, art. 2, Sch.

Marginal Citations

M1 1987 c.41.

The sheriff S

4 Territorial jurisdiction of sheriff. S

(1) Subject to the provisions of this section, the jurisdiction of the sheriffs, within their respective sheriffdoms shall extend to and include all navigable rivers, ports, harbours, creeks, shores and anchoring grounds in or adjoining such sheriffdoms and includes all criminal maritime causes and proceedings (including those applying to persons furth of Scotland) provided that the accused is, by virtue of any enactment or rule of law, subject to the jurisdiction of the sheriff before whom the case or proceeding is raised.

(2) Where an offence is alleged to have been committed in one district in a sheriffdom, it shall be competent to try that offence in a sheriff court in any other district in that sheriffdom.

(3) It shall not be competent for the sheriff to try any crime committed on the seas which it would not be competent for him to try if the crime had been committed on land.

(4) The sheriff shall have a concurrent jurisdiction with every other court of summary jurisdiction in relation to all offences competent for trial in such courts.

5 The sheriff: summary jurisdiction and powers. S

(1) The sheriff, sitting as a court of summary jurisdiction, shall continue to have all the jurisdiction and powers exercisable by him at the commencement of this Act.

(2) The sheriff shall, without prejudice to any other or wider powers conferred by statute, have power on convicting any person of a common law offence—

(a) to impose a fine not exceeding the prescribed sum;

(b) to ordain the accused to find caution for good behaviour for any period not exceeding 12 months to an amount not exceeding the prescribed sum either in lieu of or in addition to a fine or in addition to imprisonment;

(c) failing payment of such fine, or on failure to find such caution, to award imprisonment in accordance with section 219 of this Act;

(d) to impose imprisonment, for any period not exceeding [F12 12] months.

(3) F13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) It shall be competent to prosecute summarily in the sheriff court the following offences—

(a) uttering a forged document;

(b) wilful fire-raising;

(c) robbery; and

(d) assault with intent to rob.

Textual Amendments

F12 Word in s. 5(2)(d) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 43(a), 84; S.S.I. 2007/479, art. 3(1), Sch. (subject to art. 12)

F13 S. 5(3) repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 43(b), 84; S.S.I. 2007/479, art. 3(1), Sch. (subject to art. 12)

[F14 JP courts] S

Textual Amendments

F14 S. 6 cross-heading substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84(1), Sch. para. 9(5)(a); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

6 [F15 JP courts: constitution and prosecutor]. S

(1) F16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The jurisdiction and powers of the [F17 JP court] shall be exercisable by a [F18 summary sheriff] or by one or more justices, and no decision of the court shall be questioned on the ground that it was not constituted as required by this subsection unless objection was taken on that ground by or on behalf of a party to the proceedings not later than the time when the proceedings or the alleged irregularity began.

(3) All prosecutions in a [F19 JP court] shall proceed at the instance of the procurator fiscal.

(4) F20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F21 (5) The authority of the procurator fiscal to prosecute in JP courts is without prejudice to the authority of any other person to take proceedings there in pursuance of section 43 (prosecutions and penalties) of the Education (Scotland) Act 1980 (c. 44).]

[F22 (6) In this section, “justice” means a justice of the peace.]

Textual Amendments

F15 S. 6 title substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(5)(b); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F16 S. 6(1) repealed (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(1)(a); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F17 Words in s. 6(2) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F18 Words in s. 6(2) substituted (1.4.2016) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 5 para. 39(2); S.S.I. 2016/13, art. 2 sch. (with art. 3)

F19 Words in s. 6(3) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(1)(b); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F20 S. 6(4) repealed (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(1)(c); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F21 S. 6(5) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(1)(d); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F22 S. 6(6) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(1)(e); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

Modifications etc. (not altering text)

C13 S. 6(2): power to amend conferred (prosp.) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 63(2), 84

7 [F23 JP courts: jurisdiction and powers]. S

F24 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F24 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Except in so far as any enactment (including this Act or an enactment passed after this Act) otherwise provides, it shall be competent for a [F25 JP court][F26 to—

(a) try any common law or statutory offence which is triable summarily;

(b) make such orders and grant such warrants as are appropriate to a court of summary jurisdiction;

(c) do anything else (by way of procedure or otherwise) as is appropriate to such a court]

(4) It shall be competent, whether or not the accused has been previously convicted of an offence inferring dishonest appropriation of property, for any of the following offences to be tried in the [F27 JP court]—

(a) theft or reset of theft;

(b) falsehood, fraud or wilful imposition;

(c) breach of trust or embezzlement,

where (in any such case) the amount concerned does not exceed level 4 on the standard scale.

F28 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) The [F29 JP court] shall, without prejudice to any other or wider powers conferred by statute, be entitled on convicting of a common law offence—

(a) to impose imprisonment for any period not exceeding 60 days;

(b) to impose a fine not exceeding level 4 on the standard scale;

(c) to ordain the accused (in lieu of or in addition to such imprisonment or fine) to find caution for good behaviour for any period not exceeding six months and to an amount not exceeding level 4 on the standard scale;

(d) failing payment of such fine or on failure to find such caution, to award imprisonment in accordance with section 219 of this Act,

but in no case shall the total period of imprisonment imposed in pursuance of this subsection exceed 60 days.

(7) Without prejudice to any other or wider power conferred by any enactment, it shall not be competent for a [F30 JP court], as respects any statutory offence—

(a) to impose a sentence of imprisonment for a period exceeding 60 days;

(b) to impose a fine of an amount exceeding level 4 on the standard scale; or

(c) to ordain an accused person to find caution for any period exceeding six months or to an amount exceeding level 4 on the standard scale.

(8) The [F31 JP court] shall not have jurisdiction to try or to pronounce sentence in the case of any person—

(a) F32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) brought before it accused or suspected of having committed within its jurisdiction any of the following offences—

(i) murder, culpable homicide, robbery, rape [F33 (whether at common law or under section 1(1) of the Sexual Offences (Scotland) Act 2009 (asp 9)), rape of a young child (under section 18 of that Act)], wilful fire-raising, or attempted wilful fire-raising;

(ii) theft by housebreaking, or housebreaking with intent to steal;

(iii) theft or reset, falsehood fraud or wilful imposition, breach of trust or embezzlement, where the value of the property is an amount exceeding level 4 on the standard scale;

(iv) assault causing the fracture of a limb, assault with intent to ravish, assault to the danger of life, or assault by stabbing;

(v) uttering forged documents or uttering forged bank or banker’s notes, or offences under the Acts relating to coinage.

(9) Without prejudice to subsection (8) above, where either in the preliminary investigation or in the course of the trial of any offence it appears that the offence is one which—

(a) cannot competently be tried in the court before which an accused is brought; or

(b) in the opinion of the court in view of the circumstances of the case, should be dealt with by a higher court,

the court may take cognizance of the offence and commit the accused to prison for examination for any period not exceeding four days.

(10) Where an accused is committed as mentioned in subsection (9) above, the prosecutor in the court which commits the accused shall forthwith give notice of the committal to the procurator fiscal of the [F34 area] within which the offence was committed or to such other official as is entitled to take cognizance of the offence in order that the accused may be dealt with according to law.

Textual Amendments

F23 S. 7 title substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(5)(c); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F24 S. 7(1)(2) repealed (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(2)(a); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F25 Words in s. 7(3)-(8) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F26 Words in s. 7(3) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(2)(b); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F27 Words in s. 7(3)-(8) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F28 S. 7(5) repealed (1.4.2016) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 5 para. 39(3); S.S.I. 2016/13, art. 2 sch. (with art. 3)

F29 Words in s. 7(3)-(8) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F30 Words in s. 7(3)-(8) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F31 Words in s. 7(3)-(8) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F32 S. 7(8)(a) and word repealed (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(2)(d); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F33 Words in s. 7(8)(b)(i) inserted (1.12.2010) by Sexual Offences (Scotland) Act 2009 (asp 9), ss. 61, 62(2), Sch. 5 para. 2(3); S.S.I. 2010/413, art. 2, Sch.

F34 Word in s. 7(10) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(2)(e); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

[F35 Sittings of sheriff and JP courts] S

Textual Amendments

F35 S. 8 cross-heading substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(5)(d); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

8 [F36 Sittings of sheriff and JP courts]. S

(1) Notwithstanding any enactment or rule of law, a sheriff court or a [F37 JP court]—

(a) shall not be required to sit on any Saturday or Sunday or on a day which by virtue of subsection (2) or (3) below is a court holiday; but

(b) may sit on any day for the disposal of criminal business.

(2) A sheriff principal may in an order made under [F38 section 28(1) of the Courts Reform (Scotland) Act 2014] prescribe in respect of criminal business not more than [F39 11] days, other than Saturdays and Sundays, in a calendar year as court holidays in the sheriff courts within his jurisdiction; and may in the like manner prescribe as an additional court holiday any day which has been proclaimed, under section 1(3) of the M2 Banking and Financial Dealings Act 1971, to be a bank holiday either throughout the United Kingdom or in a place or locality in the United Kingdom within his jurisdiction.

(3) [F40 A sheriff principal may] prescribe not more than [F39 11] days, other than Saturdays and Sundays, in a calendar year as court holidays in the [F41 JP courts] within his jurisdiction; and he may F42 . . . prescribe as an additional holiday any day which has been proclaimed, under section 1(3) of the said Banking and Financial Dealings Act 1971, to be a bank holiday either throughout the United Kingdom or in a place or locality in the United Kingdom within his jurisdiction.

(4) A sheriff principal may in pursuance of subsection (2) or (3) above prescribe different days as court holidays in relation to different sheriff or [F43 JP courts] .

Textual Amendments

F36 S. 8 title substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(5)(e); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F37 Words in s. 8(1) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F38 Words in s. 8(2) substituted (1.4.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions) Order 2015 (S.S.I. 2015/150), art. 1, sch. para. 5

F39 Word in s. 8(2)(3) substituted (16.3.2009) by Judiciary and Courts (Scotland) Act 2008 (asp 6), ss. 59(2), 76; S.S.I. 2009/83, art. 2

F40 Words in s. 8(3) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(3)(a); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F41 Words in s. 8(3)(4) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F42 Words in s. 8(3) repealed (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(3)(b); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F43 Words in s. 8(3)(4) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(4); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

Marginal Citations

M2 1971 c.80.

Territorial jurisdiction: general S

9 Boundaries of jurisdiction. S

(1) Where an offence is committed in any harbour, river, arm of the sea or other water (tidal or otherwise) which runs between or forms the boundary of the jurisdiction of two or more courts, the offence may be tried by any one of such courts.

(2) Where an offence is committed on the boundary of the jurisdiction of two or more courts, or within the distance of 500 metres of any such boundary, or partly within the jurisdiction of one court and partly within the jurisdiction of another court or courts, the offence may be tried by any one of such courts.

(3) Where an offence is committed against any person or in respect of any property in or on any carriage, cart or vehicle employed in a journey by road or railway, or on board any vessel employed in a river, loch, canal or inland navigation, the offence may be tried by any court through whose jurisdiction the carriage, cart, vehicle or vessel passed in the course of the journey or voyage during which the offence was committed.

(4) Where several offences, which if committed in one sheriff court district could be tried [F44 together] , are alleged to have been committed by any person in different sheriff court districts, the accused may be tried for all or any of those [F45 offences—

(a) under one indictment or complaint before the sheriff of any one of the districts; or

(b) under one complaint in the JP court for any one of the districts.]

(5) Where an offence is authorised by this section to be tried by any court, it may be dealt with, heard, tried, determined, adjudged and punished as if the offence had been committed wholly within the jurisdiction of such court.

Textual Amendments

F44 Word in s. 9(4) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(6)(a); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F45 Words in s. 9(4) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(6)(b); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

[F46 9A Competence of justice's actings outwith jurisdiction S

[F47 It is competent for a justice, even if not present within his jurisdiction, to sign any warrant, judgment, interlocutor or other document relating to proceedings within that jurisdiction provided that when he does so he is present within Scotland.]]

Textual Amendments

F46 S. 9A inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 59, 89; S.S.I. 2003/288, art. 2, Sch.

F47 S. 9A repealed (10.12.2007, 8.12.2008, 23.2.2009, 14.12.2009 and 22.2.2010 for certain purposes, otherwise prosp.) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 9(7); S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527); S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

10 Crimes committed in different districts. S

(1) Where a person is alleged to have committed in more than one sheriff court district a crime or crimes to which subsection (2) below applies, he may be [F48 prosecuted in] the sheriff court [F49 or JP court] of such one of those districts as the Lord Advocate determines.

(2) This subsection applies to—

(a) a crime committed partly in one sheriff court district and partly in another;

(b) crimes connected with each other but committed in different sheriff court districts;

(c) crimes committed in different sheriff court districts in succession which, if they had been committed in one such district, could have been tried [F50 together] .

(3) Where, in pursuance of subsection (1) above, a case is tried in the sheriff court [F51 or JP court] of any sheriff court district, the procurator fiscal of that district shall have power to prosecute in that case even if the crime was in whole or in part committed in a different district, and the procurator fiscal shall have the like powers in relation to such case, whether before, during or after the trial, as he has in relation to a case arising out of a crime or crimes committed wholly within his own district.

Textual Amendments

F48 Words in s. 10(1) substituted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 10(a)(i); S.S.I. 2008/42, art. 3, Sch.

F49 Words in s. 10(1) inserted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 10(a)(ii); S.S.I. 2008/42, art. 3, Sch.

F50 Word in s. 10(2)(c) substituted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 10(b); S.S.I. 2008/42, art. 3, Sch.

F51 Words in s. 10(3) inserted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 10(c); S.S.I. 2008/42, art. 3, Sch.

[F52 10A Jurisdiction for transferred cases S

(1) A sheriff has jurisdiction for any cases which come before the sheriff by virtue of—

(a) section 34A or 83 of this Act; or

(b) section 137A, 137B, 137C or 137D of this Act.

[F53 (1A) The jurisdiction of a JP court includes jurisdiction for any cases which come before it by virtue of section 137CA, 137CB or 137CC of this Act.]

(2) A procurator fiscal for a sheriff court district shall have—

(a) power to prosecute in any cases which come before a sheriff of that district by virtue of a provision mentioned in subsection (1) above; F54 ...

[F55 (aa) power to prosecute in any cases which come before a JP court of that district by virtue of a provision mentioned in subsection (1A) above;]

(b) the like powers in relation to such cases as he has for the purposes of [F56 the other cases which come before that sheriff when exercising criminal jurisdiction or (as the case may be) before that JP court].

[F57 (3) This section is without prejudice to sections 4 to 10 of this Act.]]

Textual Amendments

F52 S. 10A inserted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 80 , 84 , Sch. para. 11 ; S.S.I. 2008/42 , art. 3 , Sch.

F53 S. 10A(1A) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) , s. 206(1) , sch. 7 para. 27(a) ; S.S.I. 2011/178 , art. 2 , sch.

F54 Word in s. 10A(2) repealed (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) , s. 206(1) , sch. 7 para. 27(b)(i) ; S.S.I. 2011/178 , art. 2 , sch.

F55 S. 10A(2)(aa) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) , s. 206(1) , sch. 7 para. 27(b)(ii) ; S.S.I. 2011/178 , art. 2 , sch.

F56 Words in s. 10A(2)(b) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) , s. 206(1) , sch. 7 para. 27(b)(iii) ; S.S.I. 2011/178 , art. 2 , sch.

F57 S. 10A(3) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) , s. 206(1) , sch. 7 para. 27(c) ; S.S.I. 2011/178 , art. 2 , sch.

11 Certain offences committed outside Scotland. S

(1) Any [F58 relevant person] who in a country outside the United Kingdom does any act or makes any omission which if done or made in Scotland would constitute the crime of murder or of culpable homicide shall be guilty of the same crime and subject to the same punishment as if the act or omission had been done or made in Scotland.

(2) Any [F59 relevant person] employed in the service of the Crown who, in a foreign country, when acting or purporting to act in the course of his employment, does any act or makes any omission which if done or made in Scotland would constitute an offence punishable on indictment shall be guilty of the same offence and subject to the same punishment, as if the act or omission had been done or made in Scotland.

[F60 (2A) Any relevant person who in a country outside the United Kingdom does any act which—

(a) constitutes an offence under the law in force in that country, and

(b) if done in Scotland would constitute the crime of assault,

is guilty of the same crime and subject to the same punishment as if the act had been done in Scotland.

(2B) For the purposes of subsection (2A)(a), an act punishable under the law in force in the country is an offence under that law however it is described in that law.

(2C) The condition specified in subsection (2A)(a) is to be taken as satisfied unless, not later than such time as may be prescribed by Act of Adjournal, the accused serves on the prosecutor a notice—

(a) stating that, on the facts as alleged with respect to the act in question, the condition is not in the accused's opinion satisfied,

(b) setting out the grounds for the accused's opinion, and

(c) requiring the prosecutor to prove that the condition is satisfied.

(2D) But the court, if it thinks fit, may permit the accused to require the prosecutor to prove that the condition is satisfied without the prior service of a notice under subsection (2C).

(2E) In proceedings on indictment, the question whether the condition is satisfied is to be determined by the judge alone.

(2F) For the purposes of subsections (1) to (2B)—

• “country” includes territory;

• “relevant person” means a person who is a United Kingdom national or is habitually resident in Scotland;

• “United Kingdom national” means an individual who is—

  (a)

  a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,

  (b)

  a person who under the British Nationality Act 1981 is a British subject, or

  (c)

  a British protected person within the meaning of that Act.]

(3) A person may be [F61 prosecuted], tried and punished for an offence to which this section applies—

(a) in any sheriff court district in Scotland in which he is apprehended or is in custody; or

(b) in such sheriff court district as the Lord Advocate may determine,

as if the offence had been committed in that district, and the offence shall, for all purposes incidental to or consequential on the trial or punishment thereof, be deemed to have been committed in that district.

(4) Any person who—

(a) has in his possession in Scotland property which he has stolen in any other part of the United Kingdom; or

(b) in Scotland receives property stolen in any other part of the United Kingdom,

may be [F62 prosecuted], tried and punished in Scotland in like manner as if he had stolen it in Scotland.

[F63 (5) Where a person in any part of the United Kingdom outside Scotland—

(a) steals or attempts to steal any mail-bag or postal packet in the course of its transmission by post, or any of the contents of such a mail-bag or postal packet; or

(b) in stealing or with intent to steal any such mail-bag or postal packet or any of its contents commits any robbery, attempted robbery or assault with intent to rob,

he is guilty of the offence mentioned in paragraph (a) or (b) as if he had committed it in Scotland and shall be liable to be prosecuted, tried and punished there without proof that the offence was committed there.

(6) Any expression used in subsection (5) and in the Postal Services Act 2000 has the same meaning in that subsection as it has in that Act.]

Textual Amendments

F58 Words in s. 11(1) substituted (29.6.2021) by Domestic Abuse Act 2021 (c. 17), s. 90(6), Sch. 3 para. 4(2); S.S.I. 2021/239, reg. 2

F59 Words in s. 11(2) substituted (29.6.2021) by Domestic Abuse Act 2021 (c. 17), s. 90(6), Sch. 3 para. 4(2); S.S.I. 2021/239, reg. 2

F60 S. 11(2A)-(2F) inserted (29.6.2021) by Domestic Abuse Act 2021 (c. 17), s. 90(6), Sch. 3 para. 4(3); S.S.I. 2021/239, reg. 2

F61 Word in s. 11(3) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 28(a); S.S.I. 2011/178, art. 2, sch.

F62 Word in s. 11(4) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 28(b); S.S.I. 2011/178, art. 2, sch.

F63 S. 11(5)(6) inserted (26.3.2001) by 2000 c. 26, s. 127(4), Sch. 8 para. 24; S.I. 2001/1148, art. 2, Sch. (subject to arts. 3-42)

Modifications etc. (not altering text)

C14 S. 11(3) applied (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {69(2)(c)}, 89; S.S.I. 2003/288, art. 2, Sch.

[F64 11A [F65 Conspiracy to commit offences outwith Scotland] S

(1) This section applies to any act done by a person in Scotland which would amount to conspiracy to commit an offence but for the fact that the criminal purpose is intended to occur [F66 outwith Scotland].

(2) Where a person does an act to which this section applies, the criminal purpose shall be treated as the offence mentioned in subsection (1) above and he shall, accordingly, be guilty of conspiracy to commit the offence.

(3) A person is guilty of an offence by virtue of this section only if the criminal purpose would involve at some stage—

(a) an act by him or another party to the conspiracy; or

(b) the happening of some other event,

constituting an offence under [F67 the relevant law]; and conduct punishable under [F68 that law] is an offence under that law for the purposes of this section however it is described in that law.

[F69 (3A) In subsection (3) above, “the relevant law” is—

(a) if the act or event was intended to take place in another part of the United Kingdom, the law in force in that part,

(b) if the act or event was intended to take place in a country or territory outwith the United Kingdom, the law in force in that country or territory.]

(4) Subject to subsection (6) below, a condition specified in subsection (3) above shall be taken to be satisfied unless, not later than such time as High Court may, by Act of Adjournal, prescribe, the accused serves on the prosecutor a notice—

(a) stating that, on the facts as alleged with respect to the relevant conduct, the condition is not in his opinion satisfied;

(b) setting out the grounds for his opinion; and

(c) requiring the prosecutor to prove that the condition is satisfied.

(5) In subsection (4) above “ the relevant conduct ” means the agreement to effect the criminal purpose.

(6) The court may permit the accused to require the prosecutor to prove that the condition mentioned in subsection (4) above is satisfied without the prior service of a notice under that subsection.

(7) In proceedings on indictment, the question whether a condition is satisfied shall be determined by the judge alone.

(8) Nothing in this section—

(a) applies to an act done before the day on which the Criminal Justice (Terrorism and Conspiracy) Act 1998 was passed, or

(b) imposes criminal liability on any person acting on behalf of, or holding office under, the Crown.]

Textual Amendments

F64 S. 11A inserted (4.9.1998) by Criminal Justice (Terrorism and Conspiracy) Act 1998 (c. 40), s. 7

F65 S. 11A title substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 50(1), 206(1); S.S.I. 2011/178, art. 2, sch.

F66 Words in s. 11A(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 50(2)(a), 206(1); S.S.I. 2011/178, art. 2, sch.

F67 Words in s. 11A(3) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 50(2)(b)(i), 206(1); S.S.I. 2011/178, art. 2, sch.

F68 Words in s. 11A(3) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 50(2)(b)(ii), 206(1); S.S.I. 2011/178, art. 2, sch.

F69 S. 11A(3A) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 50(2)(c), 206(1); S.S.I. 2011/178, art. 2, sch.

PART II S Police Functions

Lord Advocate’s instructions S

12 Instructions by Lord Advocate as to reporting of offences. S

The Lord Advocate may, from time to time, issue instructions to [F70 the] chief constable with regard to the reporting, for consideration of the question of prosecution, of offences alleged to have been committed F71 ....

Textual Amendments

F70 Word in s. 12 substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(2)(a); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F71 Words in s. 12 repealed (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(2)(b); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

Detention and questioning S

13 Powers relating to suspects and potential witnesses. S

(1) Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence at any place, he may require—

(a) that person, if the constable finds him at that place or at any place where the constable is entitled to be, to give [F72 the information mentioned in subsection (1A) below] and may ask him for an explanation of the circumstances which have given rise to the constable’s suspicion;

(b) any other person whom the constable finds at that place or at any place where the constable is entitled to be and who the constable believes has information relating to the offence, to give [F73 the information mentioned in subsection (1A) below].

[F74 (1A) That information is—

(a) the person's name;

(b) the person's address;

(c) the person's date of birth;

(d) the person's place of birth (in such detail as the constable considers necessary or expedient for the purpose of establishing the person's identity); and

(e) the person's nationality.]

(2) The constable may require the person mentioned in paragraph (a) of subsection (1) above to remain with him while he (either or both)—

(a) subject to subsection (3) below, verifies any [F75 information mentioned in subsection (1A) above] given by the person;

(b) notes any explanation proffered by the person.

(3) The constable shall exercise his power under paragraph (a) of subsection (2) above only where it appears to him that such verification can be obtained quickly.

(4) A constable may use reasonable force to ensure that the person mentioned in paragraph (a) of subsection (1) above remains with him.

(5) A constable shall inform a person, when making a requirement of that person under—

(a) paragraph (a) of subsection (1) above, of his suspicion and of the general nature of the offence which he suspects that the person has committed or is committing;

(b) paragraph (b) of subsection (1) above, of his suspicion, of the general nature of the offence which he suspects has been or is being committed and that the reason for the requirement is that he believes the person has information relating to the offence;

(c) subsection (2) above, why the person is being required to remain with him;

(d) either of the said subsections, that failure to comply with the requirement may constitute an offence.

(6) A person mentioned in—

(a) paragraph (a) of subsection (1) above who having been required—

(i) under that subsection to give [F76 the information mentioned in subsection (1A) above]; or

(ii) under subsection (2) above to remain with a constable,

fails, without reasonable excuse, to do so, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale;

(b) paragraph (b) of the said subsection (1) who having been required under that subsection to give [F77 the information mentioned in subsection (1A) above] fails, without reasonable excuse, to do so shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.

F78 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F72 Words in s. 13(1)(a)(b) substituted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 81(2), 104; S.S.I. 2006/432, art. 2(e)

F73 Words in s. 13(1)(a)(b) substituted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 81(2), 104; S.S.I. 2006/432, art. 2(e)

F74 S. 13(1A) inserted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 81(3), 104; S.S.I. 2006/432, art. 2(e)

F75 Words in s. 13(2)(a) substituted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 81(4), 104; S.S.I. 2006/432, art. 2(e)

F76 Words in s. 13(6)(a)(i)(b) substituted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 81(5), 104; S.S.I. 2006/432, art. 2(e)

F77 Words in s. 13(6)(a)(i)(b) substituted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 81(5), 104; S.S.I. 2006/432, art. 2(e)

F78 S. 13(7) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 2(a); S.S.I. 2017/345, art. 3, sch.

F79 14 Detention and questioning at police station. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F79 Ss. 14-17A repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 27(a); S.S.I. 2017/345, art. 3, sch. (with arts. 4, 7)

F79 14A Extension of period of detention under section 14 S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F79 Ss. 14-17A repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 27(a); S.S.I. 2017/345, art. 3, sch. (with arts. 4, 7)

F79 14B Extension under section 14A: procedure S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F79 Ss. 14-17A repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 27(a); S.S.I. 2017/345, art. 3, sch. (with arts. 4, 7)

F79 15 Right of persons arrested or detained to have intimation sent to another person S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F79 Ss. 14-17A repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 27(a); S.S.I. 2017/345, art. 3, sch. (with arts. 4, 7)

F79 15A Right of suspects to have access to a solicitor S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F79 Ss. 14-17A repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 27(a); S.S.I. 2017/345, art. 3, sch. (with arts. 4, 7)

F79 16 Drunken persons: power to take to designated place. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F79 Ss. 14-17A repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 27(a); S.S.I. 2017/345, art. 3, sch. (with arts. 4, 7)

Arrest: access to solicitor S

F79 17 Right of accused to have access to solicitor. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F79 Ss. 14-17A repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 27(a); S.S.I. 2017/345, art. 3, sch. (with arts. 4, 7)

F79 17A Right of person accused of sexual offence to be told about restriction on conduct of defence: arrest S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F79 Ss. 14-17A repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 27(a); S.S.I. 2017/345, art. 3, sch. (with arts. 4, 7)

Prints and samples S

18 Prints, samples etc. in criminal investigations. S

(1) This section applies where a person has been arrested and is in custody F80 ....

(2) A constable may take from the person [F81 , or require the person to provide him with, such relevant physical data] as the constable may, having regard to the circumstances of the suspected offence [F82 or the relevant offence (within the meaning of section 164(3) of the Extradition Act 2003)] in respect of which the person has been arrested F83 ..., reasonably consider it appropriate to take [F84 from him or require him to provide, and the person so required shall comply with that requirement].

[F85 (3) Subject to [F86 subsections (3A) and (4)] below [F87 and [F88 sections 18A to [F89 18G]] of this Act], all record of any relevant physical data taken from or provided by a person under subsection (2) above, all samples taken under subsection (6) [F90 or (6A)] below and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction or an order under section 246(3) of this Act.]

[F91 (3A) (3A) Subsection (3) does not apply to—

(a) relevant physical data taken under subsection (2) from, or provided under that subsection by, a person arrested under an extradition arrest power (within the meaning of section 174(2) of the Extradition Act 2003), and

(b) any sample, or any information derived from a sample, taken under subsection (6) or (6A) from a person arrested under such a power (but see section 18H).]

(4) The duty under subsection (3) above to destroy samples taken under subsection (6) [F92 or (6A)] below and information derived from such samples shall not apply—

(a) where the destruction of the sample or the information could have the effect of destroying any sample, or any information derived therefrom, lawfully held in relation to a person other than the person from whom the sample was taken; or

(b) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held by or on behalf of [F93 the Police Service of Scotland] in relation to the person.

(5) No sample, or information derived from a sample, retained by virtue of subsection (4) above shall be used—

(a) in evidence against the person from whom the sample was taken; or

(b) for the purposes of the investigation of any offence.

(6) A constable may, with the authority of an officer of a rank no lower than inspector, take from the person—

(a) from the hair of an external part of the body other than pubic hair, by means of cutting, combing or plucking, a sample of hair or other material;

(b) from a fingernail or toenail or from under any such nail, a sample of nail or other material;

(c) from an external part of the body, by means of swabbing or rubbing, a sample of blood or other body fluid, of body tissue or of other material;

(d) F94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F95 (6A) A constable, or at a constable’s direction a police custody and security officer, may take from the inside of the person’s mouth, by means of swabbing, a sample of saliva or other material.]

F96 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F97 (7A) For the purposes of this section and [F98 , subject to the modification in subsection (7AA), sections 18A to 19C] of this Act “relevant physical data” means any—

(a) fingerprint;

(b) palm print;

(c) print or impression other than those mentioned in paragraph (a) and (b) above, of an external part of the body;

(d) record of a person’s skin on an external part of the body created by a device approved by the Secretary of State.

[F99 (7AA) The modification is that for the purposes of section 19C as it applies in relation to relevant physical data taken from or provided by a person outwith Scotland, subsection (7A) is to be read as if in paragraph (d) the words from “created” to the end were omitted.]

(7B) The Secretary of State by order made by statutory instrument may approve a device for the purpose of creating such records as are mentioned in paragraph (d) of subsection (7A) above.]

(8) Nothing in this section shall prejudice—

(a) any power of search;

(b) any power to take possession of evidence where there is imminent danger of its being lost or destroyed; or

(c) any power to take [F100 relevant physical data] or samples under the authority of a warrant.

Textual Amendments

F80 Words in s. 18(1) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 28(1)(a); S.S.I. 2017/345, art. 3, sch. (with art. 4)

F81 Words in s. 18(2) substituted (1.8.1997) by 1997 c. 48, s. 47(1)(a)(i); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F82 Words in s. 18(2) inserted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 5 para. 1(2)

F83 Words in s. 18(2) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 28(1)(b); S.S.I. 2017/345, art. 3, sch. (with art. 4)

F84 Words in s. 18(2) inserted (1.8.1997) by 1997 c. 48, s. 47(1)(a)(ii); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F85 S. 18(3) substituted (retrospective to 1.8.1997) by 1998 c. 37, ss. 119, 121(2), Sch. 8 para. 117(2)

F86 Words in s. 18(3) substituted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 5 para. 1(3)

F87 Words in s. 18(3) inserted (1.1.2007) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 83(1), 104; S.S.I. 2006/607, art. 3, Sch.

F88 Words in s. 18(3) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(2)(a), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)

F89 Word in s. 18(3) substituted (31.10.2013) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 1 para. 6(2) (with s. 97); S.I. 2013/1814, art. 2(k)

F90 Words in s. 18(3) inserted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 101, 104, Sch. 6 para. 4(2); S.S.I. 2006/432, art. 2(g)(h)

F91 S. 18(3A) inserted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 5 para. 1(4)

F92 Words in s. 18(4) inserted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 101, 104, Sch. 6 para. 4(2); S.S.I. 2006/432, art. 2(g)(h)

F93 Words in s. 18(4)(b) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(3); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F94 S. 18(6)(d) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(2)(a)}, 89; S.S.I. 2003/288, art. 2, Sch.

F95 S. 18(6A) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(2)(b)}, 89; S.S.I. 2003/288, art. 2, Sch.

F96 S. 18(7) repealed (17.11.1997) by 1997 c. 48, ss. 47(1)(c), 62(2), Sch. 3; S.I. 1997/2694, art. 2(2)(a)(d)

F97 S. 18(7A)(7B) inserted (1.8.1997) by 1997 c. 48, s. 47(1)(d); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F98 Words in s. 18(7A) substituted (1.8.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(2)(b), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)

F99 S. 18(7AA) inserted (1.8.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(2)(c), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)

F100 Words in s. 18(8)(c) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 30; S.S.I. 2011/178, art. 2, sch.

Modifications etc. (not altering text)

C15 S. 18 applied (with modifications) (19.2.2001) by 2000 c. 11, ss. 41, 53, Sch. 7 para. 6, Sch. 8 para. 20(1); S.I. 2001/421, art. 2

C16 S. 18 applied (with modifications) by 1994 c. 33, s. 138(2)(2A)(6)-(9) (as substituted (15.7.2011) by The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011 (S.I. 2011/1739), art. 1(2), Sch. 2 para. 2(3)(4) (with art. 6(2)))

C17 S. 18 applied (with modifications) (12.2.2019 for specified purposes, 13.8.2020 in so far as not already in force) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(1)(g), Sch. 3 para. 42 (with s. 25(9)); S.I. 2020/792, reg. 2(g)

C18 S. 18 applied (with modifications) (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 6 para. 18 (with s. 97, Sch. 6 para. 2); S.I. 2023/1272, reg. 2(a)

C19 S. 18(3)-(5) applied (17.12.2001) by 2001 asp 13, s. 17, Sch. 4 para. 7 (with s. 29); S.S.I. 2001/456, art. 2

C20 S. 18(3) modified (2.4.2020) by The Coronavirus (Retention of Fingerprints and DNA Profiles in the Interests of National Security) Regulations 2020 (S.I. 2020/391), regs. 1, 4(3)(a) (with reg. 5)

C21 S. 18(3) modified (1.10.2020) by The Coronavirus (Retention of Fingerprints and DNA Profiles in the Interests of National Security) (No. 2) Regulations 2020 (S.I. 2020/973), regs. 1(1), 4(3)(a)(4)

[F101 18A Retention of samples etc. : prosecutions for sexual and violent offences S

[F102 (1) This section applies to—

(a) relevant physical data taken or provided under section 18(2), and

(b) any sample, or any information derived from a sample, taken under section 18(6) or (6A),

where the condition in subsection (2) is satisfied.]

(2) That condition is that criminal proceedings in respect of a relevant sexual offence or a relevant violent offence were instituted against the person from whom [F103 the relevant physical data was taken or by whom it was provided or, as the case may be, from whom] the sample was taken but those proceedings concluded otherwise than with a conviction or an order under section 246(3) of this Act.

(3) Subject to subsections (9) and (10) below, the [F104 relevant physical data, sample or information derived from a sample] shall be destroyed no later than the destruction date.

(4) The destruction date is—

(a) the date of expiry of the period of 3 years following the conclusion of the proceedings; or

(b) such later date as an order under subsection (5) below may specify.

(5) On a summary application made by the [F105 chief constable of the Police Service of Scotland] within the period of 3 months before the destruction date the sheriff may, if satisfied that there are reasonable grounds for doing so, make an order amending, or further amending, the destruction date.

(6) An application under subsection (5) above may be made to any sheriff—

(a) in whose sheriffdom the person referred to in subsection (2) above resides;

(b) in whose sheriffdom that person is believed by the applicant to be; or

(c) to whose sheriffdom the person is believed by the applicant to be intending to come.

(7) An order under subsection (5) above shall not specify a destruction date more than 2 years later than the previous destruction date.

(8) The decision of the sheriff on an application under subsection (5) above may be appealed to the sheriff principal within 21 days of the decision; and the sheriff principal's decision on any such appeal is final.

[F106 (8A) If the sheriff principal allows an appeal against the refusal of an application under subsection (5), the sheriff principal may make an order amending, or further amending, the destruction date.

(8B) An order under subsection (8A) must not specify a destruction date more than 2 years later than the previous destruction date.]

(9) Subsection (3) above does not apply where—

(a) an application under subsection (5) above has been made but has not been determined;

(b) the period within which an appeal may be brought under subsection (8) above against a decision to refuse an application has not elapsed; or

(c) such an appeal has been brought but has not been withdrawn or finally determined.

(10) Where—

(a) the period within which an appeal referred to in subsection (9)(b) above may be brought has elapsed without such an appeal being brought;

(b) such an appeal is brought and is withdrawn or finally determined against the appellant; or

(c) an appeal brought under subsection (8) above against a decision to grant an application is determined in favour of the appellant,

the [F107 relevant physical data, sample or information derived from a sample] shall be destroyed as soon as possible thereafter.

(11) In this section—

• F108 ...

  (a)

  (b)

  (c)

• “relevant sexual offence” and “relevant violent offence” have [F109 , subject to the modification in subsection (12),] the same meanings as in section 19A(6) of this Act and include any attempt, conspiracy or incitement to commit such an offence.]

[F110 (12) The modification is that the definition of “relevant sexual offence” in section 19A(6) is to be read as if for paragraph (g) there were substituted—

“(g) public indecency if it is apparent from the offence as charged in the indictment or complaint that there was a sexual aspect to the behaviour of the person charged;”]

Textual Amendments

F101 S. 18A inserted (1.1.2007) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 83(2), 104; S.S.I. 2006/607, art. 3, Sch.

F102 S. 18A(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(3)(a), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)

F103 Words in s. 18A(2) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(3)(b), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)

F104 Words in s. 18A(3) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(3)(c), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)

F105 Words in s. 18A(5) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(4)(a); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F106 S. 18A(8A)(8B) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(3)(d), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)

F107 Words in s. 18A(10) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(3)(e), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)

F108 Definition in s. 18A(11) repealed (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(4)(b); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F109 Words in s. 18A(11) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(3)(f)(ii), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)

F110 S. 18A(12) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(3)(g), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)

[F111 18B Retention of samples etc. where offer under sections 302 to 303ZA accepted S

(1) This section applies to—

(a) relevant physical data taken from or provided by a person under section 18(2), and

(b) any sample, or any information derived from a sample, taken from a person under section 18(6) or (6A),

where the conditions in subsection (2) are satisfied.

(2) The conditions are—

(a) the relevant physical data or sample was taken from or provided by the person while the person was [F112 in custody] in connection with the offence or offences in relation to which a relevant offer is issued to the person, and

(b) the person—

(i) accepts a relevant offer, or

(ii) in the case of a relevant offer other than one of the type mentioned in paragraph (d) of subsection (3), is deemed to accept a relevant offer.

(3) In this section “relevant offer” means—

(a) a conditional offer under section 302,

(b) a compensation offer under section 302A,

(c) a combined offer under section 302B, or

(d) a work offer under section 303ZA.

(4) Subject to subsections (6) and (7) and section 18C(9) and (10), the relevant physical data, sample or information derived from a sample must be destroyed no later than the destruction date.

(5) In subsection (4), “destruction date” means—

(a) in relation to a relevant offer that relates only to—

(i) a relevant sexual offence,

(ii) a relevant violent offence, or

(iii) both a relevant sexual offence and a relevant violent offence, the date of expiry of the period of 3 years beginning with the date on which the relevant offer is issued or such later date as an order under section 18C(2) or (6) may specify,

(b) in relation to a relevant offer that relates to—

(i) an offence or offences falling within paragraph (a), and

(ii) any other offence,

the date of expiry of the period of 3 years beginning with the date on which the relevant offer is issued or such later date as an order under section 18C(2) or (6) may specify,

(c) in relation to a relevant offer that does not relate to an offence falling within paragraph (a), the date of expiry of the period of 2 years beginning with the date on which the relevant offer is issued.

(6) If a relevant offer is recalled by virtue of section 302C(5) or a decision to uphold it is quashed under section 302C(7)(a), all record of the relevant physical data, sample and information derived from a sample must be destroyed as soon as possible after—

(a) the prosecutor decides not to issue a further relevant offer to the person,

(b) the prosecutor decides not to institute criminal proceedings against the person, or

(c) the prosecutor institutes criminal proceedings against the person and those proceedings conclude otherwise than with a conviction or an order under section 246(3).

(7) If a relevant offer is set aside by virtue of section 303ZB, all record of the relevant physical data, sample and information derived from a sample must be destroyed as soon as possible after the setting aside.

(8) In this section, “relevant sexual offence” and “relevant violent offence” have, subject to the modification in subsection (9), the same meanings as in section 19A(6) and include any attempt, conspiracy or incitement to commit such an offence.

(9) The modification is that the definition of “relevant sexual offence” in section 19A(6) is to be read as if for paragraph (g) there were substituted—

“(g) public indecency if it is apparent from the relevant offer (as defined in section 18B(3)) relating to the offence that there was a sexual aspect to the behaviour of the person to whom the relevant offer is issued;”.]

Textual Amendments

F111 Ss. 18B-18C inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 78, 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 5)

F112 Words in s. 18B(2)(a) substituted (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 28(2); S.S.I. 2017/345, art. 3, sch. (with art. 4)

[F111 18C Section 18B: extension of retention period where relevant offer relates to certain sexual or violent offences S

(1) This section applies where the destruction date for relevant physical data, a sample or information derived from a sample falls within section 18B(5)(a) or (b).

(2) On a summary application made by the [F113 chief constable of the Police Service of Scotland] within the period of 3 months before the destruction date, the sheriff may, if satisfied that there are reasonable grounds for doing so, make an order amending, or further amending, the destruction date.

(3) An application under subsection (2) may be made to any sheriff—

(a) in whose sheriffdom the appropriate person resides,

(b) in whose sheriffdom that person is believed by the applicant to be, or

(c) to whose sheriffdom the person is believed by the applicant to be intending to come.

(4) An order under subsection (2) must not specify a destruction date more than 2 years later than the previous destruction date.

(5) The decision of the sheriff on an application under subsection (2) may be appealed to the sheriff principal within 21 days of the decision.

(6) If the sheriff principal allows an appeal against the refusal of an application under subsection (2), the sheriff principal may make an order amending, or further amending, the destruction date.

(7) An order under subsection (6) must not specify a destruction date more than 2 years later than the previous destruction date.

(8) The sheriff principal's decision on an appeal under subsection (5) is final.

(9) Section 18B(4) does not apply where—

(a) an application under subsection (2) has been made but has not been determined,

(b) the period within which an appeal may be brought under subsection (5) against a decision to refuse an application has not elapsed, or

(c) such an appeal has been brought but has not been withdrawn or finally determined.

(10) Where—

(a) the period within which an appeal referred to in subsection (9)(b) may be brought has elapsed without such an appeal being brought,

(b) such an appeal is brought and is withdrawn or finally determined against the appellant, or

(c) an appeal brought under subsection (5) against a decision to grant an application is determined in favour of the appellant,

the relevant physical data, sample or information derived from a sample must be destroyed as soon as possible after the period has elapsed, or, as the case may be, the appeal is withdrawn or determined.

(11) In this section—

• “appropriate person” means the person from whom the relevant physical data was taken or by whom it was provided or from whom the sample was taken,

• “destruction date” has the meaning given by section 18B(5),

• F114 ...]

Textual Amendments

F111 Ss. 18B-18C inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 78, 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 5)

F113 Words in s. 18C(2) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(5)(a); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F114 Definition in s. 18C(11) repealed (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(5)(b); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

[F115 18D Retention of samples etc. taken or provided in connection with certain fixed penalty offences S

(1) This section applies to—

(a) relevant physical data taken from or provided by a person under section 18(2), and

(b) any sample, or any information derived from a sample, taken from a person under section 18(6) or (6A),

where the conditions in subsection (2) are satisfied.

(2) The conditions are—

(a) the person was arrested F116 ... in connection with a fixed penalty offence,

(b) the relevant physical data or sample was taken from or provided by the person while the person was [F117 in custody] in connection with that offence,

(c) after the relevant physical data or sample was taken from or provided by the person, a constable gave the person under section 129(1) of the 2004 Act—

(i) a fixed penalty notice in respect of that offence (the “main FPN”), or

(ii) the main FPN and one or more other fixed penalty notices in respect of fixed penalty offences arising out of the same circumstances as the offence to which the main FPN relates, and

(d) the person, in relation to the main FPN and any other fixed penalty notice of the type mentioned in paragraph (c)(ii)—

(i) pays the fixed penalty, or

(ii) pays any sum that the person is liable to pay by virtue of section 131(5) of the 2004 Act.

(3) Subject to subsections (4) and (5), the relevant physical data, sample or information derived from a sample must be destroyed before the end of the period of 2 years beginning with—

(a) where subsection (2)(c)(i) applies, the day on which the main FPN is given to the person,

(b) where subsection (2)(c)(ii) applies and—

(i) the main FPN and any other fixed penalty notice are given to the person on the same day, that day,

(ii) the main FPN and any other fixed penalty notice are given to the person on different days, the later day.

(4) Where—

(a) subsection (2)(c)(i) applies, and

(b) the main FPN is revoked under section 133(1) of the 2004 Act,

the relevant physical data, sample or information derived from a sample must be destroyed as soon as possible after the revocation.

(5) Where—

(a) subsection (2)(c)(ii) applies, and

(b) the main FPN and any other fixed penalty notices are revoked under section 133(1) of the 2004 Act,

the relevant physical data, sample or information derived from a sample must be destroyed as soon as possible after the revocations.

(6) In this section—

• “the 2004 Act” means the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8),

• “fixed penalty notice” has the meaning given by section 129(2) of the 2004 Act,

• “fixed penalty offence” has the meaning given by section 128(1) of the 2004 Act.]

Textual Amendments

F115 S. 18D inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 79, 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 6)

F116 Words in s. 18D(2)(a) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 28(3)(a); S.S.I. 2017/345, art. 3, sch. (with art. 4)

F117 Words in s. 18D(2)(b) substituted (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 28(3)(b); S.S.I. 2017/345, art. 3, sch. (with art. 4)

[F118 18E Retention of samples etc.: children referred to children's hearings S

(1) This section applies to—

(a) relevant physical data taken from or provided by a child under section 18(2); and

(b) any sample, or any information derived from a sample, taken from a child under section 18(6) or (6A),

where [F119 subsection (3), (4) or (5) applies.]

F120 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F121 (3) This subsection applies where—

(a) in relation to a children’s hearing arranged in relation to the child under section 69(2) of the 2011 Act, a section 67 ground is that the child has committed an offence mentioned in subsection (6) (a “relevant offence”),

(b) the ground is accepted by the child and each relevant person in relation to the child under section 91(1) or 105(1) of that Act, and

(c) no application to the sheriff under section 93(2)(a) or 94(2)(a) of that Act is made in relation to that ground.

(4) This subsection applies where—

(a) in relation to a children’s hearing arranged in relation to the child under section 69(2) of the 2011 Act, a section 67 ground is that the child has committed a relevant offence,

(b) the sheriff, on an application under section 93(2)(a) or 94(2)(a) of that Act, determines under section 108 of that Act that the ground is established, and

(c) no application to the sheriff under section 110(2) of that Act is made in relation to the ground.

(5) This subsection applies where, on an application under section 110(2) of the 2011 Act in relation to the child—

(a) the sheriff is satisfied under section 114(2) or 115(1)(b) of that Act that a section 67 ground which constitutes a relevant offence is established or accepted by the child and each relevant person in relation to the child, or

(b) the sheriff determines under section 117(2)(a) of that Act that—

(i) a section 67 ground which was not stated in the statement of grounds which gave rise to the grounds determination is established, and

(ii) the ground constitutes a relevant offence.]

(6) A relevant offence is such relevant sexual offence or relevant violent offence as the Scottish Ministers may by order made by statutory instrument prescribe.

(7) An order under subsection (6) may prescribe a relevant violent offence by reference to a particular degree of seriousness.

(8) Subject to section 18F(8) and (9), the relevant physical data, sample or information derived from a sample must be destroyed no later than the destruction date.

(9) The destruction date is—

(a) the date of expiry of the period of 3 years following—

[F122 (i) where subsection (3) applies, the date on which the section 67 ground was accepted as mentioned in that subsection,

(ii) where subsection (4) applies, the date on which the section 67 ground was established as mentioned in that subsection,

(iii) where the section 67 ground is established as mentioned in paragraph (a) of subsection (5), the date on which that ground was established under section 108 of the 2011 Act or, as the case may be, accepted under section 91(1) or 105(1) of that Act, or

(iv) where the section 67 ground is established as mentioned in paragraph (b) of subsection (5), the date on which that ground was established as mentioned in that paragraph,]

(b) such later date as an order under section 18F(1) may specify.

(10) No statutory instrument containing an order under subsection (6) may be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

(11) In this section—

• [F123 “the 2011 Act” means the Children’s Hearings (Scotland) Act 2011 (asp 1),

• “grounds determination” has the meaning given by section 110(1) of the 2011 Act;]

• “relevant person” has the same meaning as in section [F124 200(1) of the 2011 Act except that it includes a person deemed to be a relevant person by virtue of section 81(3), 160(4)(b) or 164(6) of that Act];

• “relevant sexual offence” and “relevant violent offence” have, subject to the modification in subsection (12), the same meanings as in section 19A(6) and include any attempt, conspiracy or incitement to commit such an offence.

• [F125 “section 67 ground” has the meaning given by section 67(1) of the 2011 Act;

• “statement of grounds” has the meaning given by section 89(3) of the 2011 Act.]

(12) The modification is that the definition of “relevant sexual offence” in section 19A(6) is to be read as if for paragraph (g) there were substituted—

““(g)public indecency if it is apparent from the [F126 section 67 ground] relating to the offence that there was a sexual aspect to the behaviour of the child;””.

Textual Amendments

F118 Ss. 18E, 18F inserted (13.12.2010 for the insertion of s. 18E(6)(7)(10), 15.4.2011 in so far as not already in force) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 80, 206(1); S.S.I. 2010/413, art. 2, sch.; S.S.I. 2011/178, art. 2, sch. (with art. 7)

F119 Words in s. 18E(1) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(2)(a)

F120 S. 18E(2) repealed (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(2)(b)

F121 S. 18E(3)-(5) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(2)(c)

F122 S. 18E(9)(a)(i)-(iv) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(2)(d)

F123 Definitions in s. 18E(11) inserted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(2)(e)(i)

F124 Words in s. 18E(11) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(2)(e)(ii)

F125 Definitions in s. 18E(11) inserted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(2)(e)(iii)

F126 Words in s. 18E(12) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(2)(f)

18F Retention of samples etc. relating to children: appeals S

(1) On a summary application made by the [F127 chief constable of the Police Service of Scotland] within the period of 3 months before the destruction date the sheriff may, if satisfied that there are reasonable grounds for doing so, make an order amending, or further amending, the destruction date.

(2) An application under subsection (1) may be made to any sheriff—

(a) in whose sheriffdom the child mentioned in section 18E(1) resides;

(b) in whose sheriffdom that child is believed by the applicant to be; or

(c) to whose sheriffdom that child is believed by the applicant to be intending to come.

(3) An order under subsection (1) must not specify a destruction date more than 2 years later than the previous destruction date.

(4) The decision of the sheriff on an application under subsection (1) may be appealed to the sheriff principal within 21 days of the decision.

(5) If the sheriff principal allows an appeal against the refusal of an application under subsection (1), the sheriff principal may make an order amending, or further amending, the destruction date.

(6) An order under subsection (5) must not specify a destruction date more than 2 years later than the previous destruction date.

(7) The sheriff principal's decision on an appeal under subsection (4) is final.

(8) Section 18E(8) does not apply where—

(a) an application under subsection (1) has been made but has not been determined;

(b) the period within which an appeal may be brought under subsection (4) against a decision to refuse an application has not elapsed; or

(c) such an appeal has been brought but has not been withdrawn or finally determined.

(9) Where—

(a) the period within which an appeal referred to in subsection (8)(b) may be brought has elapsed without such an appeal being brought;

(b) such an appeal is brought and is withdrawn or finally determined against the appellant; or

(c) an appeal brought under subsection (4) against a decision to grant an application is determined in favour of the appellant,

the relevant physical data, sample or information derived from a sample must be destroyed as soon as possible after the period has elapsed or, as the case may be, the appeal is withdrawn or determined.

(10) In this section—

• “destruction date” has the meaning given by section 18E(9); and

• F128 ...]

Textual Amendments

F118 Ss. 18E, 18F inserted (13.12.2010 for the insertion of s. 18E(6)(7)(10), 15.4.2011 in so far as not already in force) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 80, 206(1); S.S.I. 2010/413, art. 2, sch.; S.S.I. 2011/178, art. 2, sch. (with art. 7)

F127 Words in s. 18F(1) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(6)(a); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F128 Definition in s. 18F(10) repealed (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(6)(b); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

[F129 18G Retention of samples etc: national security S

(1) This section applies to—

(a) relevant physical data taken from or provided by a person under section 18(2) (including any taken or provided by virtue of paragraph 20 of Schedule 8 to the Terrorism Act 2000 [F130 or by virtue of paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019] [F131 or paragraph 18 of Schedule 6 to the National Security Act 2023]),

(b) any sample, or any information derived from a sample, taken from a person under section 18(6) or (6A) (including any taken by virtue of paragraph 20 of Schedule 8 to the Terrorism Act 2000 [F132 or by virtue of paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019] [F133 or paragraph 18 of Schedule 6 to the National Security Act 2023]),

(c) any relevant physical data, sample or information derived from a sample taken from, or provided by, a person under section 19AA(3),

(d) any relevant physical data, sample or information derived from a sample which is held by virtue of section 56 of the Criminal Justice (Scotland) Act 2003, and

(e) any relevant physical data, sample or information derived from a sample taken from a person—

(i) by virtue of any power of search,

(ii) by virtue of any power to take possession of evidence where there is immediate danger of its being lost or destroyed, or

(iii) under the authority of a warrant.

(2) The relevant physical data, sample or information derived from a sample may be retained for so long as a national security determination made by [F134 the chief constable of the Police Service of Scotland] has effect in relation to it.

(3) A national security determination is made if [F135 the chief constable of the Police Service of Scotland] determines that is necessary for the relevant physical data, sample or information derived from a sample to be retained for the purposes of national security.

(4) A national security determination—

(a) must be made in writing,

(b) has effect for a maximum of [F136 5 years] beginning with the date on which the determination is made, and

(c) may be renewed.

(5) Any relevant physical data, sample or information derived from a sample which is retained in pursuance of a national security determination must be destroyed as soon as possible after the determination ceases to have effect (except where its retention is permitted by any other enactment).

F137 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F129 S. 18G inserted (31.10.2013) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 1 para. 6(3) (with s. 97); S.I. 2013/1814, art. 2(k)

F130 Words in s. 18G(1)(a) inserted (13.8.2020) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(2)(d), Sch. 4 para. 22(2)(a); S.I. 2020/792, reg. 2(i)

F131 Words in s. 18G(1)(a) inserted (20.12.2023) by The National Security Act 2023 (Consequential Amendments of Primary Legislation) Regulations 2023 (S.I. 2023/1386), reg. 1(2), Sch. para. 14

F132 Words in s. 18G(1)(b) inserted (13.8.2020) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(2)(d), Sch. 4 para. 22(2)(b); S.I. 2020/792, reg. 2(i)

F133 Words in s. 18G(1)(b) inserted (20.12.2023) by The National Security Act 2023 (Consequential Amendments of Primary Legislation) Regulations 2023 (S.I. 2023/1386), reg. 1(2), Sch. para. 14

F134 Words in s. 18G(2) substituted (13.8.2020) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(2)(b), Sch. 2 para. 7(2); S.I. 2020/792, reg. 2(e)

F135 Words in s. 18G(3) substituted (13.8.2020) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(2)(b), Sch. 2 para. 7(3); S.I. 2020/792, reg. 2(e)

F136 Words in s. 18G(4)(b) substituted (13.8.2020) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(2)(b), Sch. 2 para. 7(4) (with s. 25(7)(8)); S.I. 2020/792, reg. 2(e)

F137 S. 18G(6) omitted (13.8.2020) by virtue of Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(2)(b), Sch. 2 para. 7(5); S.I. 2020/792, reg. 2(e)

[F138 18GA Retention of further fingerprints S

(1) This section applies where—

(a) relevant physical data to which section 18G applies has been taken from or provided by a person, and

(b) the data is or includes the person's fingerprints (“the original fingerprints”).

(2) A constable may make a determination under this section in respect of any further fingerprints taken from, or provided by, the same person (“the further fingerprints”) if—

(a) the further fingerprints were taken under or by virtue of—

(i) any provision, power or authority mentioned in section 18G(1), or

(ii) paragraph 4 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011, and

(b) the further fingerprints or the original fingerprints were taken—

(i) in connection with a terrorist investigation, as defined by section 32 of the Terrorism Act 2000, or

(ii) under a power conferred by virtue of paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019.

(3) Where a determination under this section is made in respect of the further fingerprints—

(a) the further fingerprints may be retained for as long as the original fingerprints are retained in accordance with this Part, and

(b) a requirement under any enactment to destroy the further fingerprints does not apply for as long as their retention is authorised by paragraph (a).

(4) Subsection (3)(a) does not prevent the further fingerprints being retained after the original fingerprints fall to be destroyed if the continued retention of the further fingerprints is authorised under any enactment.

(5) A written record must be made of a determination under this section.]

Textual Amendments

F138 S. 18GA inserted (13.8.2020) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(2)(b), Sch. 2 para. 8; S.I. 2020/792, reg. 2(e)

[F139 18H Retention of samples etc.: extradition S

(1) This section applies to—

(a) relevant physical data taken under section 18(2) from, or provided under that subsection by, a person arrested under an extradition arrest power (within the meaning of section 174(2) of the Extradition Act 2003), and

(b) any sample, or any information derived from a sample, taken under section 18(6) or (6A) from a person arrested under an extradition arrest power (within the meaning of section 174(2) of the Extradition Act 2003).

(2) All record of any relevant physical data, all samples and all information derived from such samples must be destroyed as soon as possible following the final determination of the extradition proceedings.

(3) The duty under subsection (2) to destroy samples taken under section 18(6) or (6A) and information derived from such samples does not apply where the circumstances in paragraph (a) or (b) of section 18(4) apply to the sample or information (and where such circumstances apply, the restrictions in section 18(5) apply to the sample or information retained).

(4) For the purposes of this section, extradition proceedings are finally determined—

(a) if the person is extradited, on the day of the extradition,

(b) if the person is discharged and there is no right of appeal under the Extradition Act 2003 against the decision which resulted in the order for the person’s discharge, when the person is discharged, on the day of the discharge,

(c) where the person is discharged at an extradition hearing or by the Scottish Ministers under section 93 of the Extradition Act 2003—

(i) if no application is made to the High Court for leave to appeal against the decision within the period during which such an application may be made, at the end of that period,

(ii) if such an application is made and is refused, on the day of the refusal,

(d) where the High Court orders the person’s discharge or dismisses an appeal against a decision to discharge the person—

(i) if no application is made to the High Court for permission to appeal to the Supreme Court within the 28 day period starting with the day of the High Court’s decision, at the end of that period,

(ii) if such an application is made to the High Court and is refused, and no application is made to the Supreme Court for permission to appeal to the Supreme Court within the period of 28 days starting with the day of the refusal, at the end of that period,

(iii) if such an application is made to the Supreme Court and is refused, on the day of the refusal,

(iv) if permission to appeal to the Supreme Court is granted, but no appeal is made within the period of 28 days starting with the day on which permission is granted, at the end of that period,

(v) if there is an appeal to the Supreme Court against the High Court’s decision, on the day on which the appeal is refused, is abandoned or is upheld with the effect that the person is discharged,

(e) if an appeal to the Supreme Court is upheld with the effect that the person is discharged, on the day of the decision to uphold the appeal.

(5) In subsection (4)—

• “extradition hearing” has the meaning given by section 68 or as the case may be section 140 of the Extradition Act 2003,

• “extradition proceedings” means proceedings under the Extradition Act 2003.]

Textual Amendments

F139 S. 18H inserted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 5 para. 1(5) (with art. 9(3)(4))

19 Prints, samples etc. in criminal investigations: supplementary provisions. S

(1) [F140 Without prejudice to any power exercisable under section 19A of this Act, this] section applies where a person convicted of an offence—

(a) has not, since the conviction, had [F141 taken from him, or been required to provide, any relevant physical data or had any impression or sample] taken from him; or

(b) has [F142 at any time had—

(i) taken from him or been required (whether under paragraph (a) above or under section 18 [F143 , 19A or 19AA] of this Act or otherwise) to provide any relevant physical data; or

(ii) any F144 ... sample taken from him,

which was not suitable for the means of analysis for which the data were taken or required or the F144 ... sample was taken] or, though suitable, was insufficient (either in quantity or in quality) to enable information to be obtained by that means of analysis.

(2) Where this section applies, a constable may, within the permitted period—

[F145 (a) take from or require the convicted person to provide him with such relevant physical data as he reasonably considers it appropriate to take or, as the case may be, require the provision of]; F146 . . .

(b) with the authority of an officer of a rank no lower than inspector, take from the person any sample mentioned in any of paragraphs (a) to [F147 (c)] of subsection (6) of section 18 of this Act by the means specified in that paragraph in relation to that sample [F148 and]

[F149 (c) take, or direct a police custody and security officer to take, from the person any sample mentioned in subsection (6A) of that section by the means specified in that subsection.]

(3) A constable—

(a) may require the convicted person to attend a police station for the purposes of subsection (2) above;

(b) may, where the convicted person is in legal custody by virtue of section 295 of this Act, exercise the powers conferred by subsection (2) above in relation to the person in the place where he is for the time being.

(4) In subsection (2) above, “the permitted period” means—

(a) in a case to which paragraph (a) of subsection (1) above applies, the period of one month beginning with the date of the conviction;

(b) in a case to which paragraph (b) of that subsection applies, the period of one month beginning with the date on which a constable of the [F150 Police Service of Scotland] receives written intimation that [F151 the relevant physical data were or] the sample, F152 . . .was unsuitable or, as the case may be, insufficient as mentioned in that paragraph.

(5) A requirement under subsection (3)(a) above—

(a) shall give the person at least seven days’ notice of the date on which he is required to attend;

(b) may direct him to attend at a specified time of day or between specified times of day.

(6) Any constable may arrest without warrant a person who fails to comply with a requirement under subsection (3)(a) above.

Textual Amendments

F140 Words in s. 19(1) substituted (17.11.1997) by 1997 c. 48, s. 48(1); S.I. 1997/2694, art. 2(2)(b)

F141 Words in s. 19(1)(a) substituted (1.8.1997) by 1997 c. 48, s. 47(2)(a)(i); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F142 Words and s. 19(1)(b)(i)(ii) substituted (1.8.1997) for words in s. 19(1)(b) by 1997 c. 48, s. 47(2)(a)(ii); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F143 Words in s. 19(1)(b)(i) substituted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 77(3), 104; S.S.I. 2006/432, art. 2(d)

F144 Words in s. 19(1)(b) repealed (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 31; S.S.I. 2011/178, art. 2, sch.

F145 S. 19(2)(a) substituted (1.8.1997) by 1997 c. 48, s. 47(2)(b); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F146 Word in s. 19(2) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(3)(a)}, 89; S.S.I. 2003/288, art. 2, Sch.

F147 Word in s. 19(2)(b) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(3)(b)}, 89; S.S.I. 2003/288, art. 2, Sch.

F148 S. 19(2)(c) and word added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(3)(c)}, 89; S.S.I. 2003/288, art. 2, Sch.

F149 S. 19(2)(c) and word added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(3)(c)}, 89; S.S.I. 2003/288, art. 2, Sch.

F150 Words in s. 19(4)(b) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(7); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F151 Words in s. 19(4)(b) inserted (1.8.1997) by 1997 c. 48, s. 47(2)(c)(i); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F152 Words in s. 19(4)(b) repealed (1.8.1997) by 1997 c. 48, ss. 47(2)(c)(ii), 62(2), Sch. 3; S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

[F153 19A Samples etc. from persons convicted of sexual and violent offences. S

(1) This section applies where a person—

(a) is convicted on or after the relevant date of a relevant offence and is sentenced to imprisonment;

(b) was convicted before the relevant date of a relevant offence, was sentenced to imprisonment and is serving that sentence on or after the relevant date;

(c) was convicted before the relevant date of a specified relevant offence, was sentenced to imprisonment, is not serving that sentence on that date or at any time after that date but was serving it at any time during the period of five years ending with the day before that date.

(2) Subject to subsections (3) and (4) below, where this section applies a constable may—

(a) take from the person or require the person to provide him with such relevant physical data as the constable reasonably considers appropriate; F154 . . .

(b) with the authority of an officer of a rank no lower than inspector, take from the person any sample mentioned in any of paragraphs (a) to [F155 (c)] of subsection (6) of section 18 of this Act by the means specified in that paragraph in relation to that sample [F156 and]

[F157 (c) take, or direct a police custody and security officer to take, from the person any sample mentioned in subsection (6A) of that section by the means specified in that subsection.]

(3) The power conferred by subsection (2) above shall not be exercised where the person has previously had taken from him or been required to provide relevant physical data or any sample under [F158 subsection (2) of section 19 of this Act in a case where the power conferred by that subsection was exercised by virtue of subsection (1)(a) of that section][F159 , under this section or under section 19AA(3) of this Act] unless the data so taken or required have been or, as the case may be, the sample so taken or required has been lost or destroyed.

(4) Where this section applies by virtue of—

(a) paragraph (a) or (b) of subsection (1) above, the powers conferred by subsection (2) above may be exercised at any time when the person is serving his sentence; and

(b) paragraph (c) of the said subsection (1), those powers may only be exercised within a period of three months beginning on the relevant date.

(5) Where a person in respect of whom the power conferred by subsection (2) above may be exercised—

(a) is no longer serving his sentence of imprisonment, subsections (3)(a), (5) and (6);

(b) is serving his sentence of imprisonment, subsection (3)(b),

of section 19 of this Act shall apply for the purposes of subsection (2) above as they apply for the purposes of subsection (2) of that section.

(6) In this section—

• “conviction” includes—

  (a)

  an acquittal [F160 by reason of the special defence set out in section 51A of this Act;]

  (b)

  a finding under section 55(2) of this Act,

  and “convicted” shall be construed accordingly;

• “relevant date” means the date on which section 48 of the M3 Crime and Punishment (Scotland) Act 1997 is commenced;

• “relevant offence” means any relevant sexual offence or any relevant violent offence;

• “relevant sexual offence” means any of the following offences—

  (a)

  rape [F161 at common law];

  (b)

  clandestine injury to women;

  (c)

  abduction of a woman with intent to rape;

  (ca)

  [F162 abduction with intent to commit the statutory offence of rape;]

  (d)

  assault with intent to rape or ravish;

  (da)

  [F163 assault with intent to commit the statutory offence of rape;]

  (e)

  indecent assault;

  (f)

  lewd, indecent or libidinous behaviour or practices;

  (g)

  [F164 public indecency if the court, in imposing sentence or otherwise disposing of the case, determined for the purposes of paragraph 60 of Schedule 3 to the Sexual Offences Act 2003 (c.42) that there was a significant sexual aspect to the offender's behaviour in committing the offence;]

  (h)

  sodomy; F165 . . .

  (i)

  any offence which consists of a contravention of any of the following statutory provisions—

  (i)

  section 52 of the M4 Civic Government (Scotland) Act 1982 (taking and distribution of indecent images of children);

  (ii)

  section 52A of that Act (possession of indecent images of children);

  (iii)

  [F166 section 311 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (non consensual sexual acts);]

  (iv)

  [F167 section 313 of that Act (persons providing care services: sexual offences);]

  (v)

  section 1 of the M5 Criminal Law (Consolidation)(Scotland) Act 1995 (incest);

  (vi)

  section 2 of that Act (intercourse with step-child);

  (vii)

  section 3 of that Act (intercourse with child under 16 years by person in position of trust);

  (viii)

  section 5(1) or (2) of that Act (unlawful intercourse with girl under 13 years);

  (ix)

  section 5(3) of that Act (unlawful intercourse with girl aged between 13 and 16 years);

  (x)

  section 6 of that Act (indecent behaviour towards girl between 12 and 16 years);

  (xi)

  section 7 of that Act (procuring);

  (xii)

  section 8 of that Act (abduction and unlawful detention of women and girls);

  (xiii)

  section 9 of that Act (permitting use of premises for unlawful sexual intercourse);

  (xiv)

  section 10 of that Act (liability of parents etc in respect of offences against girls under 16 years);

  (xv)

  section 11(1)(b) of that Act (soliciting for immoral purpose);

  (xvi)

  section 13(5)(b) and (c) of that Act (homosexual offences); [F168 and

  (j)

  any offence which consists of a contravention of any of the following provisions of the Sexual Offences (Scotland) Act 2009 (asp 9)—

  (i)

  section 1 (rape),

  (ii)

  section 2 (sexual assault by penetration),

  (iii)

  section 3 (sexual assault),

  (iv)

  section 4 (sexual coercion),

  (v)

  section 5 (coercing a person into being present during a sexual activity),

  (vi)

  section 6 (coercing a person into looking at a sexual image),

  (vii)

  section 7(1) (communicating indecently),

  (viii)

  section 7(2) (causing a person to see or hear an indecent communication),

  (ix)

  section 8 (sexual exposure),

  (x)

  section 9 (voyeurism),

  (xi)

  section 18 (rape of a young child),

  (xii)

  section 19 (sexual assault on a young child by penetration),

  (xiii)

  section 20 (sexual assault on a young child),

  (xiv)

  section 21 (causing a young child to participate in a sexual activity),

  (xv)

  section 22 (causing a young child to be present during a sexual activity),

  (xvi)

  section 23 (causing a young child to look at a sexual image),

  (xvii)

  section 24(1) (communicating indecently with a young child),

  (xviii)

  section 24(2) (causing a young child to see or hear an indecent communication),

  (xix)

  section 25 (sexual exposure to a young child),

  (xx)

  section 26 (voyeurism towards a young child),

  (xxi)

  section 28 (having intercourse with an older child),

  (xxii)

  section 29 (engaging in penetrative sexual activity with or towards an older child),

  (xxiii)

  section 30 (engaging in sexual activity with or towards an older child),

  (xxiv)

  section 31 (causing an older child to participate in a sexual activity),

  (xxv)

  section 32 (causing an older child to be present during a sexual activity),

  (xxvi)

  section 33 (causing an older child to look at a sexual image),

  (xxvii)

  section 34(1) (communicating indecently with an older child),

  (xxviii)

  section 34(2) (causing an older child to see or hear an indecent communication),

  (xxix)

  section 35 (sexual exposure to an older child),

  (xxx)

  section 36 (voyeurism towards an older child),

  (xxxi)

  section 37(1) (engaging while an older child in sexual conduct with or towards another older child),

  (xxxii)

  section 37(4) (engaging while an older child in consensual sexual conduct with another older child),

  (xxxiii)

  section 42 (sexual abuse of trust) but only if the condition set out in section 43(6) of that Act is fulfilled,

  (xxxiv)

  section 46 (sexual abuse of trust of a mentally disordered person);]

• “relevant violent offence” means any of the following offences—

  (a)

  murder or culpable homicide;

  (b)

  uttering a threat to the life of another person;

  (c)

  perverting the course of justice in connection with an offence of murder;

  (d)

  fire raising;

  (e)

  assault;

  (f)

  reckless conduct causing actual injury;

  (g)

  abduction; and

  (h)

  any offence which consists of a contravention of any of the following statutory provisions—

  (i)

  sections 2 (causing explosion likely to endanger life) or 3 (attempting to cause such an explosion) of the M6 Explosive Substances Act 1883;

  (ii)

  section 12 of the M7 Children and Young Persons (Scotland) Act 1937 (cruelty to children);

  (iii)

  sections 16 (possession of firearm with intent to endanger life or cause serious injury), 17 (use of firearm to resist arrest) or 18 (having a firearm for purpose of committing an offence listed in Schedule 2) of the M8 Firearms Act 1968;

  (iv)

  section 6 of the M9 Child Abduction Act 1984 (taking or sending child out of the United Kingdom); F169 ...

  (v)

  [F170 section 47(1) (possession of offensive weapon in public place), 49(1) (possession of article with blade or point in public place), 49A(1) or (2) (possession of article with blade or point or offensive weapon on school premises) or 49C(1) (possession of offensive weapon or article with blade or point in prison) of the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39);]

  (vi)

  [F171 any of sections 140 to 142 and 152 to 154 of the Health and Care Act 2022 (offences relating to virginity testing and hymenoplasty)];

• “sentence of imprisonment” means the sentence imposed in respect of the relevant offence and includes—

  (a)

  a [F172 compulsion] order, a restriction order, a hospital direction and any order under section 57(2)(a) or (b) of this Act; and

  (b)

  a sentence of detention imposed under section 207 or 208 of this Act,

  and “sentenced to imprisonment” shall be construed accordingly; and any reference to a person serving his sentence shall be construed as a reference to the person being detained in a prison, hospital or other place in pursuance of a sentence of imprisonment; and

• “specified relevant offence” means—

  (a)

  any relevant sexual offence mentioned in paragraphs (a), (b), (f) and (i)(viii) of the definition of that expression and any such offence as is mentioned in paragraph (h) of that definition where the person against whom the offence was committed did not consent; and

  (b)

  any relevant violent offence mentioned in paragraph (a) or (g) of the definition of that expression and any such offence as is mentioned in paragraph (e) of that definition where the assault is to the victim’s severe injury,

  but, notwithstanding subsection (7) below, does not include—

  (i)

  conspiracy or incitement to commit; and

  (ii)

  aiding and abetting, counselling or procuring the commission of,

  any of those offences.

[F173 (6A) In subsection (6)—

(a) the references to “rape” in paragraphs (c) and (d) of the definition of “relevant sexual offence” are to the offence of rape at common law; and

(b) the references in paragraphs (ca) and (da) of that subsection to “the statutory offence of rape” are (as the case may be) to?

(i) the offence of rape under section 1 of the Sexual Offences (Scotland) Act 2009, or

(ii) the offence of rape of a young child under section 18 of that Act.]

(7) In this section—

(a) any reference to a relevant offence includes a reference to any attempt, conspiracy or incitement to commit such an offence; and

(b) any reference to—

(i) a relevant sexual offence mentioned in paragraph (i) [F174 or (j)]; or

(ii) a relevant violent offence mentioned in paragraph (h),

of the definition of those expressions in subsection (6) above includes a reference to aiding and abetting, counselling or procuring the commission of such an offence.]

Textual Amendments

F153 S. 19A inserted (17.11.1997) by 1997 c. 48, s. 48(2); S.I. 1997/2694, art. 2(2)(b)

F154 Word in s. 19A(2) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(3)(a)}, 89; S.S.I. 2003/288, art. 2, Sch.

F155 Word in s. 19A(2) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{55(3)(b)}, 89; S.S.I. 2003/288, art. 2, Sch.

F156 S. 19A(2)(c) and word added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{55(3)(c)}, 89; S.S.I. 2003/288, art. 2, Sch.

F157 S. 19A(2)(c) and word added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(3)(c)}, 89; S.S.I. 2003/288, art. 2, Sch.

F158 Words in s. 19A(3) substituted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 101, 104, Sch. 6 para. 4(3); S.S.I. 2006/432, art. 2(g)(h)

F159 Words in s. 19A(3) substituted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 77(4), 104; S.S.I. 2006/432, art. 2(d)

F160 Words in s. 19A(6) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 32; S.S.I. 2012/160, art. 3, sch.

F161 Words in s. 19A(6)(a) inserted (1.12.2010) by Sexual Offences (Scotland) Act 2009 (asp 9), ss. 61, 62(2), Sch. 5 para. 2(4)(a)(i); S.S.I. 2010/413, art. 2, Sch.

F162 S. 19A(6): words in definition of “relevant sexual offence” inserted (1.12.2010) by The Sexual Offences (Scotland) Act 2009 (Supplemental and Consequential Provision) Order 2010 (S.S.I. 2010/421), art. 2, Sch. para. 1(2)(a)(i)

F163 S. 19A(6): words in definition of “relevant sexual offence” inserted (1.12.2010) by The Sexual Offences (Scotland) Act 2009 (Supplemental and Consequential Provision) Order 2010 (S.S.I. 2010/421), art. 2, Sch. para. 1(2)(a)(ii)

F164 Words in s. 19A(6) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 81(a), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 8)

F165 Word in s. 19A(6) repealed (1.12.2010) by Sexual Offences (Scotland) Act 2009 (asp 9), ss. 61, 62(2), Sch. 5 para. 2(4)(a)(ii); S.S.I. 2010/413, art. 2, Sch.

F166 S. 19A(6)(i): words in the definition of "relevant sexual offence" substituted (27.9.2005) by The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 (S.S.I. 2005/465), art. 2, Sch. 1 para. 27(2)(a)(i)

F167 S. 19A(6)(i): words in the definition of "relevant sexual offence" substituted (27.9.2005) by The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 (S.S.I. 2005/465), art. 2, Sch. 1 para. 27(2)(a)(ii)

F168 S. 19A(6)(j) and word inserted (1.12.2010) by Sexual Offences (Scotland) Act 2009 (asp 9), ss. 61, 62(2), {Sch. 5 para. 2 (4)(a)(iii)}; S.S.I. 2010/413, art. 2, Sch.

F169 Word in s. 19A(6) omitted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), s. 186(6), Sch. 16 para. 5(a); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F170 Words in s. 19A(6) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 81(b), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 8)

F171 Words in s. 19A(6) inserted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 16 para. 5(b); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F172 S. 19A(6)(i): word in the definition of "sentence of imprisonment" substituted and the word "hospital" omitted (27.9.2005) by virtue of The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 (S.S.I. 2005/465), art. 2, Sch. 1 para. 27(2)(b)

F173 S. 19A(6A) inserted (1.12.2010) by The Sexual Offences (Scotland) Act 2009 (Supplemental and Consequential Provision) Order 2010 (S.S.I. 2010/421), art. 2, Sch. para. 1(2)(b)

F174 Words in s. 19A(7)(b)(i) inserted (1.12.2010) by Sexual Offences (Scotland) Act 2009 (asp 9), ss. 61, 62(2), Sch. 5 para. 4(b); S.S.I. 2010/413, art. 2, Sch.

Marginal Citations

M3 1997 c.48.

M4 1982 c.45.

M5 1995 c.39.

M6 1883 c.3.

M7 1937 c.37.

M8 1968 c.27.

M9 1984 c.37.

[F175 19AA Samples etc. from sex offenders S

(1) This section applies where a person is subject to—

(a) the notification requirements of Part 2 of the 2003 Act;

(b) an order under [F176 section 27 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016]; or

(c) an order under section [F177 122A or] 123 of the 2003 Act (which makes provision for England and Wales and Northern Ireland corresponding to [F178 section 27 of that Act of 2016]).

(2) This section applies regardless of whether the person became subject to those requirements or that order before or after the commencement of this section.

(3) Subject to subsections (4) to (8) below, where this section applies a constable may—

(a) take from the person or require the person to provide him with such relevant physical data as the constable considers reasonably appropriate;

(b) with the authority of an officer of a rank no lower than inspector, take from the person any sample mentioned in any of paragraphs (a) to (c) of subsection (6) of section 18 of this Act by the means specified in that paragraph in relation to that sample;

(c) take, or direct a police custody and security officer to take, from the person any sample mentioned in subsection (6A) of that section by the means specified in that subsection.

(4) Where this section applies by virtue of subsection (1)(c) above, the power conferred by subsection (3) shall not be exercised unless the constable reasonably believes that the person's sole or main residence is in Scotland.

(5) The power conferred by subsection (3) above shall not be exercised where the person has previously had taken from him or been required to provide relevant physical data or any sample under section 19(2) or 19A(2) of this Act unless the data so taken or required have been or, as the case may be, the sample so taken has been, lost or destroyed.

(6) The power conferred by subsection (3) above shall not be exercised where the person has previously had taken from him or been required to provide relevant physical data or any sample under that subsection unless the data so taken or required or, as the case may be, the sample so taken—

(a) have or has been lost or destroyed; or

(b) were or was not suitable for the particular means of analysis or, though suitable, were or was insufficient (either in quantity or quality) to enable information to be obtained by that means of analysis.

(7) The power conferred by subsection (3) above may be exercised only—

(a) in a police station; or

(b) where the person is in legal custody by virtue of section 295 of this Act, in the place where the person is for the time being.

(8) The power conferred by subsection (3) above may be exercised in a police station only—

(a) where the person is present in the police station in pursuance of a requirement made by a constable to attend for the purpose of the exercise of the power; or

(b) while the person is in custody in the police station following his arrest F179 ... in connection with any offence.

(9) A requirement under subsection (8)(a) above—

(a) shall give the person at least seven days' notice of the date on which he is required to attend;

(b) may direct him to attend at a specified time of day or between specified times of day; and

(c) where this section applies by virtue of subsection (1)(b) or (c) above, shall warn the person that failure, without reasonable excuse, to comply with the requirement or, as the case may be, to allow the taking of or to provide any relevant physical data, or to provide any sample, under the power, constitutes an offence.

(10) A requirement under subsection (8)(a) above in a case where the person has previously had taken from him or been required to provide relevant physical data or any sample under subsection (3) above shall contain intimation that the relevant physical data were or the sample was unsuitable or, as the case may be, insufficient, as mentioned in subsection (6)(b) above.

(11) Before exercising the power conferred by subsection (3) above in a case to which subsection (8)(b) above applies, a constable shall inform the person of that fact.

(12) Any constable may arrest without warrant a person who fails to comply with a requirement under subsection (8)(a) above.

(13) This section does not prejudice the generality of section 18 of this Act.

(14) In this section, “the 2003 Act” means the Sexual Offences Act 2003 (c. 42).

Textual Amendments

F175 Ss. 19AA, 19AB inserted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 77(2), 104; S.S.I. 2006/432, art. 2(d)

F176 Words in s. 19AA(1)(b) substituted (31.3.2023) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), s. 45(2)(3), sch. 2 para. 1(2)(a) (with s. 44); S.S.I. 2023/51, reg. 2 (with regs. 3, 4(1))

F177 Words in s. 19AA(1)(c) inserted (8.3.2015) by Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), s. 185(1), Sch. 11 para. 51 (with ss. 21, 33, 42, 58, 75, 93); S.I. 2015/373, art. 2(g)(i)

F178 Words in s. 19AA(1)(c) substituted (31.3.2023) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), s. 45(2)(3), sch. 2 para. 1(2)(b) (with s. 44); S.S.I. 2023/51, reg. 2 (with reg. 3)

F179 Words in s. 19AA(8)(b) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 28(4); S.S.I. 2017/345, art. 3, sch. (with art. 4)

19AB [F180 Section 19AA: supplementary provision in sexual risk order cases] S

(1) This section applies where section 19AA of this Act applies by virtue of subsection (1)(b) or (c) of that section.

(2) A person who fails without reasonable excuse—

(a) to comply with a requirement made of him under section 19AA(8)(a) of this Act; or

(b) to allow relevant physical data to be taken from him, to provide relevant physical data, or to allow a sample to be taken from him, under section 19AA(3) of this Act,

shall be guilty of an offence.

(3) A person guilty of an offence under subsection (2) above shall be liable on summary conviction to the following penalties—

(a) a fine not exceeding level 4 on the standard scale;

(b) imprisonment for a period—

(i) where the conviction is in the district court, not exceeding 60 days; or

(ii) where the conviction is in the sheriff court, not exceeding 3 months; or

(c) both such fine and such imprisonment.

(4) Subject to subsection (6) below, all record of any relevant physical data taken from or provided by a person under section 19AA(3) of this Act, all samples taken from a person under that subsection and all information derived from such samples shall be destroyed as soon as possible following the person ceasing to be a person subject to any [F181 sexual risk orders].

(5) For the purpose of subsection (4) above, a person does not cease to be subject to a [F182 sexual risk order] where the person would be subject to such an order but for an order [F183 of a court considering an appeal against the making of a sexual risk order suspending the effect of the order pending the determination of the appeal].

(6) Subsection (4) above does not apply if before the duty to destroy imposed by that subsection would apply, the person—

(a) is convicted of an offence; or

(b) becomes subject to the notification requirements of Part 2 of the 2003 Act.

(7) In this section—

• F184 ...

• F184 ...

• [F185 “sexual risk order” means an order under section 27 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, and also includes an order under section 122A or 123 of the 2003 Act;]

• “the 2003 Act” has the meaning given by section 19AA(14) of this Act; and

• “convicted” shall be construed in accordance with section 19A(6) of this Act.]

Textual Amendments

F175 Ss. 19AA, 19AB inserted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 77(2), 104; S.S.I. 2006/432, art. 2(d)

F180 S. 19AB heading substituted (31.3.2023) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), s. 45(2)(3), sch. 2 para. 1(3)(d) (with s. 44); S.S.I. 2023/51, reg. 2 (with regs. 3, 4(1))

F181 Words in s. 19AB(4) substituted (31.3.2023) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), s. 45(2)(3), sch. 2 para. 1(3)(a) (with s. 44); S.S.I. 2023/51, reg. 2 (with regs. 3, 4(1))

F182 Words in s. 19AB(5) substituted (31.3.2023) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), s. 45(2)(3), sch. 2 para. 1(3)(b)(i) (with s. 44); S.S.I. 2023/51, reg. 2 (with regs. 3, 4(1))

F183 Words in s. 19AB(5) substituted (31.3.2023) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), s. 45(2)(3), sch. 2 para. 1(3)(b)(ii) (with s. 44); S.S.I. 2023/51, reg. 2 (with regs. 3, 4(1))

F184 Words in s. 19AB(7) omitted (31.3.2023) by virtue of Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), s. 45(2)(3), sch. 2 para. 1(3)(c)(i) (with s. 44); S.S.I. 2023/51, reg. 2 (with regs. 3, 4(1))

F185 Words in s. 19AB(7) inserted (31.3.2023) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), s. 45(2)(3), sch. 2 para. 1(3)(c)(ii) (with s. 44); S.S.I. 2023/51, reg. 2 (with regs. 3, 4(1))

[F186 19B Power of constable in obtaining relevant physical data etc. S

[F187 (1)] A constable may use reasonable force in—

(a) taking any relevant physical data from a person or securing a person’s compliance with a requirement made under section 18(2), 19(2)(a) or 19A(2)(a) of this Act [F188 , or under subsection (3)(a) of section 19AA of this Act where that section applies by virtue of subsection (1)(a) of that section];

(b) exercising any power conferred by section 18(6), 19(2)(b) or 19A(2)(b) of this Act [F189 , or under subsection (3)(b) of section 19AA of this Act where that section applies by virtue of subsection (1)(a) of that section].

[F190 (2) A constable may, with the authority of an officer of a rank no lower than inspector, use reasonable force in (himself) exercising any power conferred by section 18(6A), 19(2)(c) or 19A(2)(c) of this Act [F191 , or under subsection (3)(c) of section 19AA of this Act where that section applies by virtue of subsection (1)(a) of that section].]]

Textual Amendments

F186 S. 19(B) inserted (17.11.1997) by 1997 c. 48, s. 48(2); S.I. 1997/2694, art. 2(2)(b)

F187 S. 19B renumbered as s. 19B(1) (27.6.2003) by virtue of Criminal Justice (Scotland) Act 2003 (asp 7), ss. 55(4), 89; S.S.I. 2003/288, art. 2, Sch.

F188 Words in s. 19B(1)(a) inserted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 77(5)(a)(i), 104; S.S.I. 2006/432, art. 2(d)

F189 Words in s. 19B(1)(b) inserted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 77(5)(a)(ii), 104; S.S.I. 2006/432, art. 2(d)

F190 S. 19B(2) added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 55(4), 89; S.S.I. 2003/288, art. 2, Sch.

F191 Words in s. 19B(2) inserted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 77(5)(b), 104; S.S.I. 2006/432, art. 2(d)

[F192 19C Sections 18 and 19 to 19AA: use of samples etc. S

(1) Subsection (2) applies to—

(a) relevant physical data taken or provided under section 18(2), 19(2)(a), 19A(2)(a) or 19AA(3)(a) [F193 (including any taken or provided by virtue of paragraph 20 of Schedule 8 to the Terrorism Act 2000 [F194 or by virtue of paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019] [F195 or paragraph 18 of Schedule 6 to the National Security Act 2023])],

(b) a sample, or any information derived from a sample, taken under section 18(6) or (6A), 19(2)(b) or (c), 19A(2)(b) or (c) or 19AA(3)(b) or (c) [F196 (including any taken or provided by virtue of paragraph 20 of Schedule 8 to the Terrorism Act 2000 [F197 or by virtue of paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019] [F198 or paragraph 18 of Schedule 6 to the National Security Act 2023])],

(c) relevant physical data or a sample taken from a person—

(i) by virtue of any power of search,

(ii) by virtue of any power to take possession of evidence where there is immediate danger of its being lost or destroyed, or

(iii) under the authority of a warrant,

(d) information derived from a sample falling within paragraph (c), and

(e) relevant physical data, a sample or information derived from a sample taken from, or provided by, a person outwith Scotland which is given by any person to—

[F199 (i) the Police Service of Scotland (“the Police Service”),]

(ii) the Scottish Police [F200 Authority (“the Authority”),] or

(iii) a person acting on behalf of [F201 the Police Service or the Authority].

(2) The relevant physical data, sample or information derived from a sample may be used—

(a) for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, F202 ...

(b) for the identification of a deceased person or a person from whom the relevant physical data or sample came,

[F203 (c) in the interests of national security, F204 ...

[F205 (ca) for the purposes of investigating foreign power threat activity, or]

(d) for the purposes of a terrorist investigation].

(3) Subsections (4) and (5) apply to relevant physical data, a sample or information derived from a sample falling within any of paragraphs (a) to (d) of subsection (1) (“relevant material”).

(4) If the relevant material is held by [F206 the Police Service, the Authority or a person acting on behalf of the Police Service or the Authority, the Police Service] or, as the case may be, the Authority or person may give the relevant material to another person for use by that person in accordance with subsection (2).

(5) [F207 The Police Service, the Authority or a person acting on behalf of the Police Service or the Authority] may, in using the relevant material in accordance with subsection (2), check it against other relevant physical data, samples and information derived from samples received from another person.

(6) In subsection (2)—

(a) the reference to crime includes a reference to—

(i) conduct which constitutes a criminal offence or two or more criminal offences (whether under the law of a part of the United Kingdom or a country or territory outside the United Kingdom), or

(ii) conduct which is, or corresponds to, conduct which, if it all took place in any one part of the United Kingdom would constitute a criminal offence or two or more criminal offences,

(b) the reference to an investigation includes a reference to an investigation outside Scotland of a crime or suspected crime, F208 ...

(c) the reference to a prosecution includes a reference to a prosecution brought in respect of a crime in a country or territory outside Scotland [F209 , F210 ...

[F211 (ca) “foreign power threat activity” has the meaning given by section 33 of the National Security Act 2023, and]

(d) “terrorist investigation” has the meaning given by section 32 of the Terrorism Act 2000.]

(7) This section is without prejudice to any other power relating to the use of relevant physical data, samples or information derived from a sample.]

Textual Amendments

F192 S. 19C inserted (1.8.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 82(1), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 9)

F193 Words in s. 19C(1)(a) inserted (16.9.2011) by The Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011 (S.I. 2011/2298), art. 1(3), Sch. para. 1(a) (with art. 4(1)(4))

F194 Words in s. 19C(1)(a) inserted (13.8.2020) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(2)(d), Sch. 4 para. 22(3)(a); S.I. 2020/792, reg. 2(i)

F195 Words in s. 19C(1)(a) inserted (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 18 para. 7(2) (with s. 97); S.I. 2023/1272, reg. 2(f)

F196 Words in s. 19C(1)(b) inserted (16.9.2011) by The Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011 (S.I. 2011/2298), art. 1(3), Sch. para. 1(a) (with art. 4(1)(4))

F197 Words in s. 19C(1)(b) inserted (13.8.2020) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(2)(d), Sch. 4 para. 22(3)(b); S.I. 2020/792, reg. 2(i)

F198 Words in s. 19C(1)(b) inserted (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 18 para. 7(2) (with s. 97); S.I. 2023/1272, reg. 2(f)

F199 S. 19C(1)(e)(i) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(8)(a)(i); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F200 Words in s. 19C(1)(e)(ii) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(8)(a)(ii); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F201 Words in s. 19C(1)(e)(iii) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(8)(a)(iii); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F202 Word in s. 19C(2)(a) omitted (16.9.2011) by virtue of The Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011 (S.I. 2011/2298), art. 1(3), Sch. para. 1(b)(i) (with art. 4(1)(4))

F203 S. 19C(2)(c)(d) inserted (16.9.2011) by The Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011 (S.I. 2011/2298), art. 1(3), Sch. para. 1(b)(ii) (with art. 4(1)(4))

F204 Word in s. 19C(2)(c) omitted (20.12.2023) by virtue of National Security Act 2023 (c. 32), s. 100(1), Sch. 18 para. 7(3)(a) (with s. 97); S.I. 2023/1272, reg. 2(f)

F205 S. 19C(2)(ca) inserted (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 18 para. 7(3)(b) (with s. 97); S.I. 2023/1272, reg. 2(f)

F206 Words in s. 19C(4) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(8)(b); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F207 Words in s. 19C(5) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(8)(c); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F208 Word in s. 19C(6)(b) omitted (16.9.2011) by virtue of The Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011 (S.I. 2011/2298), art. 1(3), Sch. para. 1(c)(i) (with art. 4(1)(4))

F209 S. 19C(6)(d) and word inserted (16.9.2011) by The Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011 (S.I. 2011/2298), art. 1(3), Sch. para. 1(c)(ii) (with art. 4(1)(4))

F210 Word in s. 19C(6)(c) omitted (20.12.2023) by virtue of National Security Act 2023 (c. 32), s. 100(1), Sch. 18 para. 7(4)(a) (with s. 97); S.I. 2023/1272, reg. 2(f)

F211 S. 19C(6)(ca) inserted (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 18 para. 7(4)(b) (with s. 97); S.I. 2023/1272, reg. 2(f)

F212 20 Use of prints, samples etc. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F212 S. 20 repealed (1.8.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 33; S.S.I. 2011/178, art. 2, sch.

[F213 Testing for Class A drugs S

Textual Amendments

F213 Ss. 20A, 20B and preceding cross-heading inserted (1.1.2007 for certain purposes, 25.2.2007 in regard to the inserted s. 20B(3), and otherwise in force at 12.6.2007) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 84, 104; S.S.I. 2006/607, art. 3, Sch.; S.S.I. 2007/84, {art. 3(1)(a)(4))(a)}

20A Arrested persons: testing for certain Class A drugs S

(1) Subject to subsection (2) below, where subsection (3) below applies an appropriate officer may—

(a) require a person who has been arrested and is in custody in a police station to provide him with a sample of urine; or

(b) take from the inside of the mouth of such a person, by means of swabbing, a sample of saliva or other material,

which the officer may subject to analysis intended to reveal whether there is any relevant Class A drug in the person's body.

(2) The power conferred by subsection (1) above shall not be exercised where the person has previously been required to provide or had taken from him a sample under that subsection in the same period in custody.

(3) This subsection applies where—

(a) the person is of 16 years of age or more;

(b) the period in custody in the police station has not exceeded 6 hours;

(c) the police station is situated in an area prescribed by order made by statutory instrument by the Scottish Ministers; and

(d) either—

(i) the person's arrest was on suspicion of committing or having committed a relevant offence; or

(ii) a senior police officer who has appropriate grounds has authorised the making of the requirement to provide or the taking of the sample.

(4) Before exercising the power conferred by subsection (1) above, an appropriate officer shall—

(a) warn the person in respect of whom it is to be exercised that failure, without reasonable excuse, to comply with the requirement or, as the case may be, allow the sample to be taken constitutes an offence; and

(b) in a case within subsection (3)(d)(ii) above, inform the person of the giving of the authorisation and the grounds for the suspicion.

(5) Where—

(a) a person has been required to provide or has had taken a sample under subsection (1) above;

(b) any of the following is the case—

(i) the sample was not suitable for the means of analysis to be used to reveal whether there was any relevant Class A drug in the person's body;

(ii) though suitable, the sample was insufficient (either in quantity or quality) to enable information to be obtained by that means of analysis; or

(iii) the sample was destroyed during analysis and the means of analysis failed to produce reliable information; and

(c) the person remains in custody in the police station (whether or not the period of custody has exceeded 6 hours),

an appropriate officer may require the person to provide or as the case may be take another sample of the same kind by the same method.

(6) Before exercising the power conferred by subsection (5) above, an appropriate officer shall warn the person in respect of whom it is to be exercised that failure, without reasonable excuse, to comply with the requirement or, as the case may be, allow the sample to be taken constitutes an offence.

(7) A person who fails without reasonable excuse—

(a) to comply with a requirement made of him under subsection (1)(a) or (5) above; or

(b) to allow a sample to be taken from him under subsection (1)(b) or (5) above,

shall be guilty of an offence.

(8) In this section—

• “appropriate grounds” means reasonable grounds for suspecting that the misuse by the person of any relevant Class A drug caused or contributed to the offence on suspicion of which the person was arrested;

• “appropriate officer” means—

  (a)

  a constable; or

  (b)

  a police custody and security officer acting on the direction of a constable;

• “misuse” has the same meaning as in the Misuse of Drugs Act 1971 (c. 38);

• “relevant Class A drug” means any of the following substances, preparations and products—

  (a)

  cocaine or its salts;

  (b)

  any preparation or other product containing cocaine or its salts;

  (c)

  diamorphine or its salts;

  (d)

  any preparation or other product containing diamorphine or its salts;

• “relevant offence” means any of the following offences—

  (a)

  theft;

  (b)

  assault;

  (c)

  robbery;

  (d)

  fraud;

  (e)

  reset;

  (f)

  uttering a forged document;

  (g)

  embezzlement;

  (h)

  an attempt, conspiracy or incitement to commit an offence mentioned in paragraphs (a) to (g);

  (i)

  an offence under section 4 of the Misuse of Drugs Act 1971 (c. 38) (restriction on production and supply of controlled drugs) committed in respect of a relevant Class A drug;

  (j)

  an offence under section 5(2) of that Act of 1971 (possession of controlled drug) committed in respect of a relevant Class A drug;

  (k)

  an offence under section 5(3) of that Act of 1971 (possession of controlled drug with intent to supply) committed in respect of a relevant Class A drug;

• “senior police officer” means a police officer of a rank no lower than inspector.

20B Section 20A: supplementary S

(1) Section 20A of this Act does not prejudice the generality of section 18 of this Act.

(2) Each person carrying out a function under section 20A of this Act must have regard to any guidance issued by the Scottish Ministers—

(a) about the carrying out of the function; or

(b) about matters connected to the carrying out of the function.

(3) An order under section 20A(3)(c) shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

(4) An authorisation for the purposes of section 20A of this Act may be given orally or in writing but, if given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.

(5) If a sample is provided or taken under section 20A of this Act by virtue of an authorisation, the authorisation and the grounds for the suspicion are to be recorded in writing as soon as is reasonably practicable after the sample is provided or taken.

(6) A person guilty of an offence under section 20A of this Act shall be liable on summary conviction to the following penalties—

(a) a fine not exceeding level 4 on the standard scale;

(b) imprisonment for a period—

(i) where conviction is in the district court, not exceeding 60 days; or

(ii) where conviction is in the sheriff court, not exceeding 3 months; or

(c) both such fine and imprisonment.

(7) Subject to subsection (8) below, a sample provided or taken under section 20A of this Act shall be destroyed as soon as possible following its analysis for the purpose for which it was taken.

(8) Where an analysis of the sample reveals that a relevant Class A drug is present in the person's body, the sample may be retained so that it can be used, and supplied to others, for the purpose of any proceedings against the person for an offence under section 88 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10); but—

(a) the sample may not be used, or supplied, for any other purpose; and

(b) the sample shall be destroyed as soon as possible once it is no longer capable of being used for that purpose.

(9) Information derived from a sample provided by or taken from a person under section 20A of this Act may be used and disclosed only for the following purposes—

(a) for the purpose of proceedings against the person for an offence under section 88 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10);

(b) for the purpose of informing any decision about granting bail in any criminal proceedings to the person;

(c) for the purpose of informing any decision of a children's hearing arranged to consider the person's case;

(d) where the person is convicted of an offence, for the purpose of informing any decision about the appropriate sentence to be passed by a court and any decision about the person's supervision or release;

(e) for the purpose of ensuring that appropriate advice and treatment is made available to the person.

(10) Subject to subsection (11) below, the Scottish Ministers may by order made by statutory instrument modify section 20A(8) of this Act for either of the following purposes—

(a) for the purpose of adding an offence to or removing an offence from those for the time being listed in the definition of “relevant offence”;

(b) for the purpose of adding a substance, preparation or product to or removing a substance, preparation or product from those for the time being listed in the definition of “relevant Class A drug”.

(11) An order under subsection (10)(b) may add a substance, preparation or product only if it is a Class A drug (that expression having the same meaning as in the Misuse of Drugs Act 1971 (c. 38)).

(12) An order under subsection (10) above shall not be made unless a draft of the statutory instrument containing it has been laid before and approved by resolution of the Scottish Parliament.]

Schedule 1 offences S

F214 21 Schedule 1 offences: power of constable to take offender into custody. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F214 S. 21 repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 2(b); S.S.I. 2017/345, art. 3, sch.

F215 ... S

Textual Amendments

F215 S. 22 cross-heading repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 27(b); S.S.I. 2017/345, art. 3, sch. (with arts. 4, 5)

F216 22 Liberation by police. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F216 Ss. 22-22ZB repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 27(b); S.S.I. 2017/345, art. 3, sch. (with arts. 4, 5)

F216 22ZA Offences where undertaking breached S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F216 Ss. 22-22ZB repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 27(b); S.S.I. 2017/345, art. 3, sch. (with arts. 4, 5)

F216 22ZB Evidential and procedural provision S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F216 Ss. 22-22ZB repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 27(b); S.S.I. 2017/345, art. 3, sch. (with arts. 4, 5)

PART III S Bail

[F217 22A Consideration of bail on first appearance S

(1) On the first occasion on which—

(a) a person accused on petition is brought before the sheriff prior to committal until liberated in due course of law; or

(b) a person charged on complaint with an offence is brought before a judge having jurisdiction to try the offence,

the sheriff or, as the case may be, the judge shall, after giving that person and the prosecutor an opportunity to be heard F218 ..., either admit or refuse to admit that person to bail.

[F219 (1A) Before determining whether to admit or refuse to admit the person accused or charged to bail, the sheriff or judge must also give an officer of a local authority an opportunity to provide (orally or in writing) information relevant to that determination.]

[F220 (2) Admittance to or refusal of bail shall be determined before the end of the day (not being a Saturday or Sunday, or a court holiday prescribed for the court which is to determine the question of bail, unless that court is sitting on that day for the disposal of criminal business) after the day on which the person accused or charged is brought before the sheriff or judge.]

(3) If, by [F221 that time], the sheriff or judge has not admitted or refused to admit the person accused or charged to bail, then that person shall be forthwith liberated.

(4) This section applies whether or not the person accused or charged is in custody when that person is brought before the sheriff or judge.]

Textual Amendments

F217 S. 22A inserted before s. 23 (9.8.2000) by 2000 asp 9, s. 1

F218 Words in s. 22A(1) repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 6(1)(a), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F219 S. 22A(1A) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 1(2), 18(2); S.S.I. 2025/52, reg. 2(a)

F220 S. 22A(2) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 6(1)(b), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F221 Words in s. 22A(3) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 6(1)(c), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

23 Bail applications. S

(1) Any person accused on petition of a crime F222 . . . shall be entitled immediately, on any [F223 (other than the first)] occasion on which he is brought before the sheriff prior to his committal until liberated in due course of law, to apply to the sheriff for bail, and the prosecutor shall be entitled to be heard against any such application.

(2) The sheriff shall be entitled in his discretion to refuse such application before the person accused is committed until liberated in due course of law.

(3) Where an accused is admitted to bail without being committed until liberated in due course of law, it shall not be necessary so to commit him, and it shall be lawful to serve him with an indictment or complaint without his having been previously so committed.

(4) Where bail is refused before committal until liberation in due course of law on an application under subsection (1) above, the application for bail may be renewed after such committal.

(5) Any sheriff having jurisdiction to try the offence or to commit the accused until liberated in due course of law may, at his discretion, on the application of any person who has been committed until liberation in due course of law for any crime or offence, F224 . . ., and having given the prosecutor an opportunity to be heard, admit or refuse to admit the person to bail.

[F225 (6) Any person charged on complaint with an offence shall, on any (other than the first) occasion on which he is brought before a judge having jurisdiction to try the offence, be entitled to apply to the judge for bail and the prosecutor shall be entitled to be heard against any such application.]

(7) An application under subsection (5) or (6) above shall be disposed of [F226 before the end of the day (not being a Saturday or Sunday, or a court holiday prescribed for the court which is to determine the question of bail, unless that court is sitting on that day for the disposal of criminal business) after the day of] its presentation to the judge, failing which the accused shall be forthwith liberated.

(8) This section applies whether or not the accused is in custody at the time he appears for disposal of his application.

Textual Amendments

F222 Words in s. 23(1) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(1)(a)(i)

F223 Words in s. 23(1) inserted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(1)(a)(ii)

F224 Words in s. 23(5) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(1)(b)

F225 S. 23(6) substituted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(1)(c)

F226 Words in s. 23(7) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 6(2), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

[F227 23A Bail and liberation where person already in custody S

(1) A person may be admitted to bail under section 22A , [F228 23, 65(8C) or 107A(7)(b)] of this Act although in custody—

(a) having been refused bail in respect of another crime or offence; or

(b) serving a sentence of imprisonment.

(2) A decision to admit a person to bail by virtue of subsection (1) above does not liberate the person from the custody mentioned in that subsection.

(3) The liberation under section [F229 22A(3), 23(7) or 107A(7)(b)] of this Act of a person who may be admitted to bail by virtue of subsection (1) above does not liberate that person from the custody mentioned in that subsection.

(4) In subsection (1) above, “another crime or offence” means a crime or offence other than that giving rise to the consideration of bail under section 22A , [F230 23, 65(8C) or 107A(7)(b)] of this Act.]

Textual Amendments

F227 S. 23A inserted (9.8.2000) by 2000 asp 9, s. 2

F228 Words in s. 23A(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 35(a); S.S.I. 2011/178, art. 2, sch.

F229 Words in s. 23A(3) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 35(b); S.S.I. 2011/178, art. 2, sch.

F230 Words in s. 23A(4) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 35(a); S.S.I. 2011/178, art. 2, sch.

[F231 23B Entitlement to bail and the court's function S

[F232 (1) Bail is to be granted to an accused person unless the court determines that there is good reason for refusing bail.

(1A) The court may determine that there is good reason for refusing bail only if it considers that—

(a) at least one of the grounds specified in section 23C(1) applies, and

(b) having regard to the public interest, and having considered the imposition of bail conditions in accordance with subsection (2), it is necessary to refuse bail—

(i) in the interests of public safety, including the protection of the complainer from a risk of harm, or

(ii) to prevent a significant risk of prejudice to the interests of justice.]

(2) In determining a question of bail in accordance with subsection (1) above, the court is to consider the extent to which the public interest could, if bail were granted, be safeguarded by the imposition of bail conditions.

F233 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) The court must (without prejudice to any other right of the parties to be heard) give the prosecutor and the accused person an opportunity to make submissions in relation to a question of bail [F234 (including submissions in relation to any information provided by an officer of a local authority under section 22A(1A) or in response to a request under subsection (6))].

(5) The attitude of the prosecutor towards a question of bail (including as to bail conditions) does not restrict the court's exercise of its discretion in determining the question in accordance with subsection (1) above.

(6) For the purpose of so determining a question of bail (including as to bail conditions), the court may request the prosecutor or the accused person's solicitor or counsel [F235 or an officer of a local authority] to provide it with information relevant to the question.

[F236 (6A) Where relevant to a question of bail, and without prejudice to the generality of subsection (6), the court may in particular request the prosecutor to provide it with information in relation to the risk of harm to the complainer.]

(7) However, whether [F237 the prosecutor, the accused person’s solicitor or counsel, or an officer of a local authority] gives the court opinion as to any risk of something occurring (or any likelihood of something not occurring) is a matter for that party [F238 or officer] to decide.

[F239 (8) For the purposes of subsections (1A)(b)(i) and (6A)—

• “complainer” means the person against whom the offence to which the proceedings relate is alleged to have been committed,

• “harm” means physical or psychological harm,

• “psychological harm” includes fear, alarm and distress.

(9) For the purposes of subsection (1A)(b)(ii), “prejudice to the interests of justice” means—

(a) the accused person evading justice as a result of the proceedings being delayed or discontinued, or

(b) the course of justice in the proceedings being impeded or prejudiced as a result of—

(i) the destruction, concealment or withholding of evidence,

(ii) the giving of false or misleading evidence, or

(iii) the quality of evidence, or its sufficiency in law, being diminished.

(10) In subsection (9)(b)(iii), the reference to the quality of evidence is to its quality in terms of completeness, accuracy and probative value.]

Textual Amendments

F231 Ss. 23B-23D inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 1, 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F232 S. 23B(1)(1A) substituted for s. 23B(1) (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 2(2)(a), 18(2); S.S.I. 2025/52, reg. 2(b)

F233 S. 23B(3) repealed (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 2(2)(b), 18(2); S.S.I. 2025/52, reg. 2(b)

F234 Words in s. 23B(4) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 1(3)(a), 18(2); S.S.I. 2025/52, reg. 2(a)

F235 Words in s. 23B(6) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 1(3)(b), 18(2); S.S.I. 2025/52, reg. 2(a)

F236 S. 23B(6A) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 1(3)(c), 18(2); S.S.I. 2025/52, reg. 2(a)

F237 Words in s. 23B(7) substituted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 1(3)(d)(i), 18(2); S.S.I. 2025/52, reg. 2(a)

F238 Words in s. 23B(7) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 1(3)(d)(ii), 18(2); S.S.I. 2025/52, reg. 2(a)

F239 S. 23B(8)-(10) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 2(2)(c), 18(2); S.S.I. 2025/52, reg. 2(b)

23C Grounds relevant as to question of bail S

(1) In any proceedings in which a person is accused of an offence, the following are grounds on which it may be determined that there is good reason for refusing bail—

(a) [F240 subject to subsection (1A),] any substantial risk that the person might if granted bail—

(i) abscond; or

(ii) fail to appear at a diet of the court as required;

(b) any substantial risk of the person committing further offences if granted bail;

(c) any substantial risk that the person might if granted bail—

(i) interfere with witnesses; or

(ii) otherwise obstruct the course of justice,

in relation to himself or any other person;

(d) any other substantial factor which appears to the court to justify keeping the person in custody.

[F241 (1A) When determining whether there is good reason for refusing bail in summary proceedings, the court may take account of any such risk as is mentioned in subsection (1)(a) only where—

(a) the person has previously failed to appear at a relevant diet, or

(b) the proceedings relate to an offence under section 27(1)(a) or 150(8).]

(2) In assessing the grounds specified in subsection (1) above, the court must have regard to all material considerations including (in so far as relevant in the circumstances of the case) the following examples—

(a) the—

(i) nature (including level of seriousness) of the offences before the court;

(ii) probable disposal of the case if the person were convicted of the offences;

(b) whether the person was subject to a bail order when the offences are alleged to have been committed;

(c) whether the offences before the court are alleged to have been committed—

(i) while the person was subject to another court order;

(ii) while the person was on release on licence or parole;

(iii) during a period for which sentence of the person was deferred;

(d) the character and antecedents of the person, in particular—

(i) the nature of any previous convictions of the person (including convictions [F242 by courts outside [F243 Scotland]]);

(ii) whether the person has previously contravened a bail order or other court order (by committing an offence or otherwise);

(iii) whether the person has previously breached the terms of any release on licence or parole (by committing an offence or otherwise);

(iv) whether the person is serving or recently has served a sentence of imprisonment in connection with a matter referred to in sub-paragraphs (i) to (iii) above;

(e) the associations and community ties of the person.

[F244 (3) In subsection (1A)(a), “relevant diet” means a diet of the court relating to the offence with which the person is charged—

(a) of which the person has been given due notice, or

(b) at which the person is required by this Act to appear.]

Textual Amendments

F231 Ss. 23B-23D inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 1, 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F240 Words in s. 23C(1)(a) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 2(3)(a), 18(2); S.S.I. 2025/52, reg. 2(b)

F241 S. 23C(1A) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 2(3)(b), 18(2); S.S.I. 2025/52, reg. 2(b)

F242 Words in s. 23C(2)(d)(i) substituted (13.12.2010 for all purposes in respect of offences committed on or after this date) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 71(1), 206(1), Sch. 4 para. 2; S.S.I. 2010/413, art. 2, Sch.

F243 Word in s. 23C(2)(d)(i) substituted (31.12.2020) by The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 13(2) (with reg. 16)

F244 S. 23C(3) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 2(3)(c), 18(2); S.S.I. 2025/52, reg. 2(b)

23D Restriction on bail in certain solemn cases S

F245 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F231 Ss. 23B-23D inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 1, 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F245 S. 23D repealed (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 3, 18(2); S.S.I. 2025/52, reg. 2(c)

24 Bail and bail conditions. S

(1) All crimes and offences F246 ... are bailable.

(2) Nothing in this Act shall affect the right of the Lord Advocate or the High Court to admit to bail any person charged with any crime or offence.

[F247 (2A) Whenever the court grants or refuses bail, it shall state its reasons.

[F248 (2AA) Where the court refuses bail in any proceedings in which a person is accused of an offence, it must—

(a) state in particular—

(i) the grounds on which it determines, in accordance with section 23B(1A), that there is good reason for refusing bail,

(ii) if refusing bail solely on the ground specified in section 23C(1)(a) (substantial risk of absconding or failing to appear), its reasons for considering under section 23B(1A)(b) that it is necessary to do so, and

(iii) its reasons for considering under section 23B(1A)(b) and (2) that either it would not be appropriate to impose on the accused bail conditions subject to a requirement to submit to monitoring in accordance with Part 1 of the Management of Offenders (Scotland) Act 2019 (electronic monitoring) or that doing so would not adequately safeguard the interests of public safety or justice as mentioned in section 23B(1A)(b)(i) or (ii), and

(b) have the grounds mentioned in paragraph (a)(i) entered in the record of the proceedings.]

(2B) Where the court—

(a) grants bail to a person accused of [F249 an offence falling within subsection (2C)]; and

(b) does so without imposing on the accused further conditions under subsection (4)(b)(i) below,

the court shall also state why it considers in the circumstances of the case that such conditions are unnecessary.]

[F250 (2C) An offence falls within this subsection if it is—

(a) a sexual offence (having the meaning given by section 210A(10) and (11)),

(b) an offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018,

(c) an offence that is aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016,

(d) an offence under section 39 of the Criminal Justice and Licensing (Scotland) Act 2010 (offence of stalking),

(e) an attempt, conspiracy or incitement to commit an offence mentioned in paragraph (b), (c) or (d),

(f) aiding, abetting, counselling or procuring the commission of an offence mentioned in paragraph (b), (c) or (d).]

(3) It shall not be lawful to grant bail or release for a pledge or deposit of money, and—

(a) release on bail may be granted only on conditions which subject to subsection (6) below, shall not include a pledge or deposit of money;

(b) liberation may be granted by the police under [F251 section 25 of the Criminal Justice (Scotland) Act 2016].

(4) In granting bail the court or, as the case may be, the Lord Advocate shall impose on the accused—

(a) the standard conditions; and

(b) such further conditions as the court or, as the case may be, the Lord Advocate considers necessary to secure—

(i) that the standard conditions are observed; F252 ...

F252 (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) The standard conditions referred to in subsection (4) above are conditions that the accused—

(a) appears at the appointed time at every diet relating to the offence with which he is charged of which he is given due notice; [F253 or at which he is required by this Act to appear]

(b) does not commit an offence while on bail;

(c) does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person; F254 ...

[F255 (ca) does not behave in a manner which causes, or is likely to cause, alarm or distress to witnesses;]

[F256 (cb) whenever reasonably instructed by a constable to do so—

(i) participates in an identification parade or other identification procedure; and

(ii) allows any print, impression or sample to be taken from the accused;]

(d) makes himself available for the purpose of enabling enquiries or a report to be made to assist the court in dealing with him for the offence with which he is charged [F257 ; and

(e) where the (or an) offence in respect of which he is admitted to bail is one [F258 listed in subsection (7A)(b)], does not seek to obtain, otherwise than by way of a solicitor, any precognition of or statement by the complainer in relation to the subject matter of the offence.]

(6) The court or, as the case may be, the Lord Advocate may impose as one of the conditions of release on bail a requirement that the accused or a cautioner on his behalf deposits a sum of money in court, but only where the court or, as the case may be, the Lord Advocate is satisfied that the imposition of such condition is appropriate to the special circumstances of the case.

[F259 (6A) Subsection (6) above does not apply in relation to an accused admitted to bail under section 65(8C) of this Act.]

(7) In any enactment, including this Act and any enactment passed after this Act—

(a) any reference to bail shall be construed as a reference to release on conditions in accordance with this Act or to conditions imposed on bail, as the context requires;

(b) any reference to an amount of bail fixed shall be construed as a reference to conditions, including a sum required to be deposited under subsection (6) above;

(c) any reference to finding bail or finding sufficient bail shall be construed as a reference to acceptance of conditions imposed or the finding of a sum required to be deposited under subsection (6) above.

[F260 (7A) For the purpose of subsection (5)(e)—

(a) “complainer” means the person against whom the offence is alleged to have been committed,

(b) the list is—

(i) an offence to which section 288C applies (certain sexual offending),

(ii) an offence to which section 288DC applies (domestic abuse cases).]

(8) In this section [F261 (other than subsection (2AA))] and sections 25 and 27 to 29 of this Act, references to an accused and to appearance at a diet shall include references respectively to an appellant and to appearance at the court on the day fixed for the hearing of an appeal.

Textual Amendments

F246 Words in s. 24(1) repealed (9.8.2000) by 2000 asp 9, s. 3(1)

F247 S. 24(2A)(2B) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 2(1)(a), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F248 S. 24(2AA) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 4(2), 18(2); S.S.I. 2025/52, reg. 2(d)

F249 Words in s. 24(2B)(a) substituted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 4(3), 18(2); S.S.I. 2025/52, reg. 2(d)

F250 S. 24(2C) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 4(4), 18(2); S.S.I. 2025/52, reg. 2(d)

F251 Words in s. 24(3)(b) substituted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential and Supplementary Modifications) Regulations 2017 (S.S.I. 2017/452), reg. 1, sch. para. 12(2) (with reg. 2(2))

F252 S. 24(4)(b)(ii) and preceding word repealed (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 58(a), 206(1); S.S.I. 2011/178, art. 2, sch.

F253 Words in s. 24(5)(a) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 5(a); S.S.I. 2004/405, art. 2 Sch. 1 (subject to arts. 3-5)

F254 Word in s. 24(5) repealed (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 5(1)(a); S.S.I. 2002/443, art. 3

F255 S. 24(5)(ca) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 2(1)(c), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F256 S. 24(5)(cb) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 58(b), 206(1); S.S.I. 2011/178, art. 2, sch.

F257 S. 24(5)(e) and preceding word inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 5(1)(b); S.S.I. 2002/443, art. 3

F258 Words in s. 24(5)(e) substituted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 2(2)(a); S.S.I. 2018/387, reg. 2 (with reg. 6)

F259 S. 24(6A) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 5(b); S.S.I. 2004/405, art. 2 Sch. 1 (subject to arts. 3-5)

F260 S. 24(7A) substituted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 2(2)(b); S.S.I. 2018/387, reg. 2 (with reg. 6)

F261 Words in s. 24(8) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 4(5), 18(2); S.S.I. 2025/52, reg. 2(d)

24A Bail conditions: remote monitoring of restrictions on movements S

F262 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F262 Ss. 24A-24E repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 59, 206(1); S.S.I. 2010/413, art. 2, Sch.

24B Regulations as to power to impose remote monitoring requirements under section 24A S

F263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F263 Ss. 24A-24E repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 59, 206(1); S.S.I. 2010/413, art. 2, Sch.

24C Monitoring of compliance in pursuance of requirements imposed under section 24A S

F264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F264 Ss. 24A-24E repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 59, 206(1); S.S.I. 2010/413, art. 2, Sch.

24D Remote monitoring S

F265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F265 Ss. 24A-24E repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 59, 206(1); S.S.I. 2010/413, art. 2, Sch.

24E Documentary evidence in proceedings for breach of bail conditions being remotely monitored S

F266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F266 Ss. 24A-24E repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 59, 206(1); S.S.I. 2010/413, art. 2, Sch.

[F267 [F268 24F] Bail: extradition proceedings S

(1) In the application of the provisions of this Part by virtue of section 9(2) or 77(2) of the Extradition Act 2003 (judge’s powers at extradition hearing), those provisions apply with the modifications that—

(a) references to the prosecutor are to be read as references to a person acting on behalf of the territory to which extradition is sought;

(b) the right of the Lord Advocate mentioned in section 24(2) of this Act applies to a person subject to extradition proceedings as it applies to a person charged with any crime or offence;

(c) the following do not apply—

[F269 (ai) subsection (1A) of section 23C;]

(i) paragraph (b) of section 24(3); and

(ii) subsection (3) of section 30; and

(d) sections 28(1) and 33 apply to a person subject to extradition proceedings as they apply to an accused.

[F270 (1A) In the application of the provisions of this Part by virtue of section 7(7) of the Extradition Act 2003 (identity of person arrested), those provisions apply with the modification that subsection (1A) of section 23C does not apply.]

(2) Section 32 of this Act applies in relation to a refusal of bail, the amount of bail or a decision to allow bail or ordain appearance in proceedings under this Part as the Part applies by virtue of the sections of that Act of 2003 mentioned in subsection (1) above.

(3) The Scottish Ministers may, by order, for the purposes of section 9(2) or 77(2) of the Extradition Act 2003 make such amendments to this Part as they consider necessary or expedient.

(4) The order making power in subsection (3) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.]

Textual Amendments

F267 S. 24A inserted (1.1.2004) by Extradition Act 2003 (c. 41), ss. 199, 221; S.I. 2003/3103, art. 2 (subject to arts. 3-5)

F268 S. 24A renumbered as 24F (31.1.2005) by The Criminal Procedure (Amendment) (Scotland) Act 2004 (Incidental, Supplemental and Consequential Provisions) Order 2005 (S.S.I. 2005/40), art. 4(2)

F269 S. 24F(1)(c)(ai) inserted (10.12.2024) by The Bail and Release from Custody (Scotland) Act 2023 (Consequential Modifications) Order 2024 (S.I. 2024/1316), arts. 1, 3(2)

F270 S. 24F(1A) inserted (10.12.2024) by The Bail and Release from Custody (Scotland) Act 2023 (Consequential Modifications) Order 2024 (S.I. 2024/1316), arts. 1, 3(3) (with art. 4)

25 Bail conditions: supplementary. S

[F271 (A1) When granting bail, the court shall (if the accused is present) explain to the accused in ordinary language—

(a) the effect of the conditions imposed;

(b) the effect of the requirement under subsection (2B) below; and

(c) the consequences which may follow a breach of any of those conditions or that requirement.

(B1) The accused shall (whether or not the accused is present when bail is granted) be given a written explanation in ordinary language of the matters mentioned in paragraphs (a) to (c) of subsection (A1) above.

(C1) Such a written explanation may be contained in the copy of the bail order given to the accused or in another document.]

(1) The court shall specify in the order granting bail, a copy of which shall be given to the accused—

(a) the conditions imposed; and

[F272 (aa) that breach of a condition imposed is an offence and renders the accused liable to arrest, prosecution and punishment under this Act;]

(b) an address, within the United Kingdom (being the accused’s normal place of residence or such other place as the court may, on cause shown, direct) which, subject to subsection (2) below, shall be his proper domicile of citation.

(2) The court may on application in writing by the accused while he is on bail alter the address specified in the order granting bail, and this new address shall, as from such date as the court may direct, become his proper domicile of citation; and the court shall notify the accused of its decision on any application under this subsection.

[F273 (2A) Where an application is made under subsection (2) above—

(a) the application shall be intimated by the accused immediately and in writing to the Crown Agent and for that purpose the application shall be taken to be intimated to the Crown Agent if intimation of it is sent to the procurator fiscal for the sheriff court district in which bail was granted ; and

(b) the court shall, before determining the application, give the prosecutor an opportunity to be heard.]

[F274 (2B) Where the domicile of citation specified in an order granting bail ceases to be the accused's normal place of residence, the accused must make an application under subsection (2) above within 7 days of that happening.

(2C) A person who without reasonable excuse contravenes subsection (2B) above is guilty of an offence and is liable—

(a) on conviction in the JP court, to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 60 days or to both;

(b) in any other case, to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 12 months or to both.]

(3) In this section “proper domicile of citation” means the address at which the accused may be cited to appear at any diet relating to the offence with which he is charged or an offence charged in the same proceedings as that offence or to which any other intimation or document may be sent; and any citation at or the sending of an intimation or document to the proper domicile of citation shall be presumed to have been duly carried out.

[F275 (4) In this section, references to the court (other than in subsection (2A)) shall, in relation to a person who has been admitted to bail by the Lord Advocate, be read as if they were references to the Lord Advocate.]

Textual Amendments

F271 S. 25(A1)-(C1) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 2(2)(a), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F272 S. 25(1)(aa) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 2(2)(b), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F273 S. 25(2A) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 18(2), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5) (as amended by S.S.I. 2005/40, art. 3(4))

F274 S. 25(2B)(2C) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 2(2)(c), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F275 S. 25(4) inserted (4.10.2004) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 6; S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

Modifications etc. (not altering text)

C22 S. 25(2C)(a) applied (10.12.2007) by The District Courts and Justices of the Peace (Scotland) Order 2007 (S.S.I. 2007/480), art. 4(1)(a)

[F276 25A Failure to accept conditions of bail under section 65(8C): continued detention of accused S

An accused who—

(a) is, by virtue of subsection (4) of section 65 of this Act, entitled to be admitted to bail; but

(b) fails to accept any of the conditions imposed by the court on bail under subsection (8C) of that section,

shall continue to be detained under the committal warrant for so long as he fails to accept any of those conditions.]

Textual Amendments

F276 S. 25A inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 7; S.S.I. 2004/405, art. 2 Sch. 1 (subject to arts. 3-5)

F277 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F277 S. 26 repealed (9.8.2000) by 2000 asp 9, s. 3(2)

27 Breach of bail conditions: offences. S

(1) Subject to subsection (7) below, an accused who having been granted bail fails without reasonable excuse—

(a) to appear at the time and place appointed for any diet of which he has been given due notice [F278 or at which he is required by this Act to appear]; or

(b) to comply with any other condition imposed on bail,

shall, subject to subsection (3) below, be guilty of an offence and liable on conviction to the penalties specified in subsection (2) below.

(2) The penalties mentioned in subsection (1) above are—

(a) a fine not exceeding level 3 on the standard scale; and

(b) imprisonment for a period—

(i) where conviction is in the [F279 JP court], not exceeding 60 days; or

(ii) in any other case, not exceeding [F280 12] months.

(3) Where, and to the extent that, the failure referred to in subsection (1)(b) above consists in the accused having committed an offence while on bail (in this section referred to as “the subsequent offence”), he shall not be guilty of an offence under that subsection but, subject to subsection (4) below, the court which sentences him for the subsequent offence shall, in determining the appropriate sentence or disposal for that offence, have regard to—

(a) the fact that the offence was committed by him while on bail and the number of bail orders to which he was subject when the offence was committed;

(b) any previous conviction of the accused of an offence under subsection (1)(b) above; and

(c) the extent to which the sentence or disposal in respect of any previous conviction of the accused differed, by virtue of this subsection, from that which the court would have imposed but for this subsection.

[F281 [F282 (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).]

(3B) The references in subsection (3)(c) to subsection (3) are to be read, in relation to a previous conviction by a court referred to in subsection (3A), as references to any provision that is equivalent to subsection (3).

(3C) Any issue of equivalence arising in pursuance of subsection (3A) or (3B) is for the court to determine.]

(4) The court shall not, under subsection (3) above, have regard to the fact that the subsequent offence was committed while the accused was on bail unless that fact is libelled in the indictment or, as the case may be, specified in the complaint.

[F283 (4A) The fact that the subsequent offence was committed while the accused was on bail shall, unless challenged—

(a) in the case of proceedings on indictment, by giving notice of a preliminary objection [F284 in accordance with section 71(2) or 72(6)(b)(i)] of this Act; or

(b) in summary proceedings, by preliminary objection before his plea is recorded,

be held as admitted.]

[F285 (4B) In any proceedings in relation to an offence under subsection (1) above or subsection 7 below, the fact that (as the case may be) an accused—

(a) was on bail;

(b) was subject to any particular condition of bail;

(c) failed to appear at a diet; or

(d) was given due notice of a diet,

shall, unless challenged in the manner described in paragraph (a) or (b) of subsection (4A) above, be held as admitted.]

(5) Where the maximum penalty in respect of the subsequent offence is specified by or by virtue of any enactment, that maximum penalty shall, for the purposes of the court’s determination, by virtue of subsection (3) above, of the appropriate sentence or disposal in respect of that offence, be increased—

(a) where it is a fine, by the amount for the time being equivalent to level 3 on the standard scale; and

(b) where it is a period of imprisonment—

(i) as respects a conviction in the High Court or the sheriff court, by 6 months; and

(ii) as respects a conviction in the [F279 JP court], by 60 days,

notwithstanding that the maximum penalty as so increased exceeds the penalty which it would otherwise be competent for the court to impose.

(6) Where the sentence or disposal in respect of the subsequent offence is, by virtue of subsection (3) above, different from that which the court would have imposed but for that subsection, the court shall state the extent of and the reasons for that difference.

[F286 (6A) Where, despite the requirement to have regard to the matters specified in paragraphs (a) to (c) of subsection (3) above, the sentence or disposal in respect of the subsequent offence is not different from that which the court would have imposed but for that subsection, the court shall state (as appropriate, by reference to those matters) the reasons for there being no difference.]

(7) An accused who having been granted bail in relation to solemn proceedings fails without reasonable excuse to appear at the time and place appointed for any diet of which he has been given due notice (where such diet is in respect of solemn proceedings) shall be guilty of an offence and liable on conviction on indictment to the following penalties—

(a) a fine; and

(b) imprisonment for a period not exceeding [F287 5] years.

(8) At any time before the trial of an accused under solemn procedure for the original offence, it shall be competent—

(a) to amend the indictment to include an additional charge of an offence under this section;

(b) to include in the list of witnesses or productions relating to the original offence, witnesses or productions relating to the offence under this section.

[F288 (8A) At any time before the trial of an accused in summary proceedings for the original offence, it is competent to amend the complaint to include an additional charge of an offence under this section.]

(9) [F289 A penalty under subsection (2) or (7) above shall] be imposed in addition to any other penalty which it is competent for the court to impose, notwithstanding that the total of penalties imposed may exceed the maximum penalty which it is competent to impose in respect of the original offence.

[F290 (9A) The reference in subsection (9) above to a penalty being imposed in addition to another penalty means, in the case of sentences of imprisonment or detention—

(a) where the sentences are imposed at the same time (whether or not in relation to the same complaint or indictment), framing the sentences so that they have effect consecutively;

(b) where the sentences are imposed at different times, framing the sentence imposed later so that (if the earlier sentence has not been served) the later sentence has effect consecutive to the earlier sentence.

(9B) Subsection (9A)(b) above is subject to section 204A of this Act.]

(10) A court which finds an accused guilty of an offence under this section may remit the accused for sentence in respect of that offence to any court which is considering the original offence.

(11) In this section “the original offence” means the offence with which the accused was charged when he was granted bail or an offence charged in the same proceedings as that offence.

Textual Amendments

F278 Words in s. 27(1)(a) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 8(a); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F279 Words in s. 27(2)(b)(i)(5)(b)(ii) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 26(c); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F280 Word in s. 27(2)(b)(ii) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 3(1)(a), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F281 S. 27(3A) substituted (31.12.2020) by The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 13(4) (with reg. 16)

F282 S. 27(3A)-(3C) inserted (13.12.2010 for all purposes in respect of offences committed on or after this date) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 71(1), 206(1), Sch. 4 para. 3; S.S.I. 2010/413, art. 2, Sch.

F283 S. 27(4A) inserted (4.7.1996) by 1996 c. 25, s. 73(2)

F284 Words in s. 27(4A)(a) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 8(b); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F285 S. 27(4B) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 3(1)(b), 84 (as amended by S.S.I. 2007/540, art. 3); S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F286 S. 27(6A) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 3(1)(c), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F287 Word in s. 27(7)(b) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 3(1)(d), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F288 S. 27(8A) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 62(1), 206(1); S.S.I. 2011/178, art. 2, sch.

F289 Words in s. 27(9) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 3(1)(e), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F290 S. 27(9A)(9B) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 3(1)(f), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

28 Breach of bail conditions: arrest of offender, etc. S

(1) A constable may arrest without warrant an accused who has been released on bail where the constable has reasonable grounds for suspecting that the accused has broken, is breaking, or is likely to break any condition imposed on his bail.

[F291 (1ZA) Where—

(a) a constable who is not in uniform arrests a person under subsection (1), and

(b) the person asks to see the constable's identification,

the constable must show identification to the person as soon as reasonably practicable.]

[F292 (1A) Where an accused who has been released on bail is arrested by a constable (otherwise than under subsection (1) above), the accused may be detained in custody under this subsection if the constable has reasonable grounds for suspecting that the accused has breached, or is likely to breach, any condition imposed on his bail.

(1B) Subsection (1A) above—

(a) is without prejudice to any other power to detain the accused;

(b) applies even if release of the accused would be required but for that subsection.]

(2) An accused who is arrested under [F293 subsection (1) above, or is detained under subsection (1A) above,] shall wherever practicable be brought before the court to which his application for bail was first made not later than in the course of the first day after his arrest, such day not being, subject to subsection (3) below, a Saturday, a Sunday or a court holiday prescribed for that court under section 8 of this Act.

(3) Nothing in subsection (2) above shall prevent an accused being brought before a court on a Saturday, a Sunday or such a court holiday where the court is, in pursuance of the said section 8, sitting on such day for the disposal of criminal business.

[F294 (3A) If—

(a) a person is in custody only by virtue of subsection (1) or (1A), and

(b) in the opinion of a constable there are no reasonable grounds for suspecting that the person has broken, or is likely to break, a condition imposed on the person's bail,

the person must be released from custody immediately.

(3B) An accused is deemed to be brought before a court under subsection (2) or (3) if the accused appears before it by means of a live television link (by virtue of a determination by the court that the person is to do so by such means).]

(4) Where an accused is brought before a court under subsection (2) or (3) above, the court, after hearing the parties, may—

(a) recall the order granting bail;

(b) release the accused under the original order granting bail; or

(c) vary the order granting bail so as to contain such conditions as the court thinks it necessary to impose to secure that the accused complies with the requirements of paragraphs (a) to (d) of section 24(5) of this Act.

[F295 (4A) In the case of an accused released on bail by virtue of section 65(8C) of this Act—

(a) subsection (2) above shall have effect as if the reference to the court to which his application for bail was first made were a reference to the court or judge which admitted him to bail under that section; and

(b) subsection (4) above shall not apply and subsection (4B) below shall apply instead.

(4B) Where an accused referred to in subsection (4A) above is, under subsection (2) or (3) above, brought before the court or judge which admitted him to bail under section 65(8C)—

(a) the court or judge shall give the prosecutor an opportunity to make an application under section 65(5) of this Act; and

(b) if the prosecutor does not make such an application, or if such an application is made but is refused, the court or judge may—

(i) release the accused under the original order granting bail; or

(ii) vary the order granting bail so as to contain such conditions as the court or judge thinks necessary to impose to secure that the accused complies with the requirements of paragraphs (a) to (d) of section 24(5) of this Act.]

(5) The same rights of appeal shall be available against any decision of the court under subsection (4) above as were available against the original order of the court relating to bail.

(6) For the purposes of this section and section 27 of this Act, an extract from the minute of proceedings, containing the order granting bail and bearing to be signed by the clerk of court, shall be sufficient evidence of the making of that order and of its terms and of the acceptance by the accused of the conditions imposed under section 24 of this Act.

Textual Amendments

F291 S. 28(1ZA) inserted (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 29(a); S.S.I. 2017/345, art. 3, sch.

F292 S. 28(1A)(1B) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 3(2)(a), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F293 Words in s. 28(2) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 3(2)(b), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F294 S. 28(3A)(3B) inserted (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 29(b); S.S.I. 2017/345, art. 3, sch.

F295 S. 28(4A)(4B) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 9; S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

[F296 28A Application of the Criminal Justice (Scotland) Act 2016 to persons arrested and detained under section 28 S

(1) Section 7(2) of the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”) does not apply to an accused who has been arrested under section 28(1) of this Act.

(2) The following provisions of the 2016 Act apply in relation to a person who is to be brought before a court under section 28(2) or (3) of this Act as they apply in relation to a person who is to be brought before a court in accordance with section 21(2) of the 2016 Act—

(a) section 22,

(b) section 23,

(c) section 24.

(3) In relation to a person who is to be brought before a court under section 28(2) or (3) of this Act, the 2016 Act applies as though—

(a) in section 23(2)—

(i) for paragraph (c) there were substituted—

“(c) that the person is to be brought before the court under section 28 of the 1995 Act in order for the person's bail to be considered.”, and

(ii) paragraph (d) were omitted,

(b) in section 24—

(i) in subsection (3)(c), for the words “after being officially accused” there were substituted “ after being informed that the person is to be brought before a court under section 28(2) or (3) of the 1995 Act ”, and

(ii) in subsection (4), for paragraph (c) there were substituted—

“(c) that the person is to be brought before the court under section 28 of the 1995 Act in order for the person's bail to be considered.”,

(c) in section 43(1), for paragraph (d) there were substituted—

“(d) the court before which the person is to be brought under section 28(2) or (3) of the 1995 Act and the date on which the person is to be brought before that court.”.]

Textual Amendments

F296 S. 28A inserted (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 30; S.S.I. 2017/345, art. 3, sch.

29 Bail: monetary conditions. S

(1) Without prejudice to section 27 of this Act, where the accused or a cautioner on his behalf has deposited a sum of money in court under section 24(6) of this Act, then—

(a) if the accused fails to appear at the time and place appointed for any diet of which he has been given due notice, the court may, on the motion of the prosecutor, immediately order forfeiture of the sum deposited;

(b) if the accused fails to comply with any other condition imposed on bail, the court may, on conviction of an offence under section 27(1)(b) of this Act and on the motion of the prosecutor, order forfeiture of the sum deposited.

(2) If the court is satisfied that it is reasonable in all the circumstances to do so, it may recall an order made under subsection (1)(a) above and direct that the money forfeited shall be refunded, and any decision of the court under this subsection shall be final and not subject to review.

(3) A cautioner, who has deposited a sum of money in court under section 24(6) of this Act, shall be entitled, subject to subsection (4) below, to recover the sum deposited at any diet of the court at which the accused appears personally.

(4) Where the accused has been charged with an offence under section 27(1)(b) of this Act, nothing in subsection (3) above shall entitle a cautioner to recover the sum deposited unless and until—

(a) the charge is not proceeded with; or

(b) the accused is acquitted of the charge; or

(c) on the accused’s conviction of the offence, the court has determined not to order forfeiture of the sum deposited.

(5) The references in subsections (1)(b) and (4)(c) above to conviction of an offence shall include references to the making of an order in respect of the offence under section 246(3) of this Act.

30 Bail review. S

(1) This section applies where a court has refused to admit a person to bail or, where a court has so admitted a person, the person has failed to accept the conditions imposed or that a sum required to be deposited under section 24(6) of this Act has not been so deposited.

[F297 (1A) This section also applies where a person who has accepted the conditions imposed on his bail wants to have any of them removed or varied.]

(2) A court shall, on the application of any person mentioned in subsection (1) [F298 or (1A) above, have power to review (in favour of the person) its decision as to bail, or its decision as to the conditions imposed, if—

(a) the circumstances of the person have changed materially; or

(b) the person puts before the court material information which was not available to it when its decision was made.]

[F299 [F300 (2A) On receipt of an application under subsection (2), the court must—

(a) intimate the application to the prosecutor, and

(b) before determining the application, give the prosecutor an opportunity to be heard.

(2AA) Despite subsection (2A)(b), the court may grant the application without having heard the prosecutor if the prosecutor consents.]

(2B) Subsection (2C) below applies where an application is made under subsection (2) above by a person convicted on indictment pending the determination of—

(a) his appeal;

(b) any relevant appeal by the Lord Advocate under section 108 or 108A of this Act; or

(c) the sentence to be imposed on, or other method of dealing with, him.

(2C) Where this subsection applies the application shall be—

(a) intimated by the person making it immediately and in writing to the Crown Agent; and

(b) [F301 determined] not less than 7 days after the date of that intimation.]

(3) An application under this section, where it relates to the original decision of the court, shall not be made before the fifth day after that decision and, where it relates to a subsequent decision, before the fifteenth day thereafter.

(4) Nothing in this section shall affect any right of a person to appeal against the decision of a court in relation to admitting to bail or to the conditions imposed.

Textual Amendments

F297 S. 30(1A) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 4(1)(a), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F298 Words in s. 30(02) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 4(1)(b), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F299 S. 30(2A)-(2C) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 18(3), 27(1); S.S.I. 2004/405, art. 2 Sch. 1 (subject to arts. 3-5)

F300 S. 30(2A)(2AA) substituted for s. 30(2A) (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 57(2)(a), 206(1); S.S.I. 2011/178, art. 2, sch.

F301 Word in s. 30(2C)(b) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 57(2)(b), 206(1); S.S.I. 2011/178, art. 2, sch.

31 Bail review on prosecutor’s application. S

(1) On an application by the prosecutor at any time after a court has granted bail to a person the court may, where the prosecutor puts before the court material information which was not available to it when it granted bail to that person, review its decision.

(2) On receipt of an application under subsection (1) above the court shall—

(a) intimate the application to the person granted bail;

(b) fix a diet for hearing the application and cite that person to attend the diet; and

(c) where it considers that the interests of justice so require, grant warrant to arrest that person.

[F302 (2ZA) Despite subsection (2)(b), the court may grant the application without fixing a hearing if the person granted bail consents.]

[F303 (2A) Subsection (2B) below applies to an application under subsection (1) above where the person granted bail—

(a) was convicted on indictment; and

(b) was granted bail pending the determination of—

(i) his appeal;

(ii) any relevant appeal by the Lord Advocate under section 108 or 108A of this Act; or

(iii) the sentence to be imposed on, or other method of dealing with, him.

(2B) Where this subsection applies, the application shall be heard not more than 7 days after the day on which it is made.]

(3) On F304 ... an application under subsection (1) above the court may—

(a) withdraw the grant of bail and remand the person in question in custody; or

(b) grant bail, or continue the grant of bail, either on the same or on different conditions.

[F305 (3A) In relation to an accused admitted to bail under section 65(8C) of this Act—

(a) an application may be made under subsection (1) above only in relation to the conditions imposed on bail; and

(b) paragraph (a) of subsection (3) above shall not apply in relation to any such application.]

(4) Nothing in the foregoing provisions of this section shall affect any right of appeal against the decision of a court in relation to bail.

Textual Amendments

F302 S. 31(2ZA) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 57(3)(a), 206(1); S.S.I. 2011/178, art. 2, sch.

F303 S. 31(2A)(2B) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 18(4), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F304 Word in s. 31(3) repealed (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 57(3)(b), 206(1); S.S.I. 2011/178, art. 2, sch.

F305 S. 31(3A) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 10; S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

32 Bail appeal. S

(1) [F306 Where, in any case, bail] is refused or where the [F307 accused] is dissatisfied with the amount of bail fixed, he may appeal to the [F308 appropriate Appeal Court] which may, in its discretion order intimation to the Lord Advocate or, as the case may be, the prosecutor.

(2) Where, in any case, F309 . . . bail is granted, or, in summary proceedings an accused is ordained to appear, the public prosecutor, if dissatisfied—

(a) with the decision allowing bail;

(b) with the amount of bail fixed; or

(c) in summary proceedings, that the accused has been ordained to appear,

may appeal to the [F310 appropriate Appeal Court], and the [F307 accused] shall not be liberated, subject to subsection (7) below, until the appeal by the prosecutor is disposed of.

[F311 (2A) The public prosecutor may, in relation to an accused admitted to bail under section 65(8C) of this Act, appeal under subsection (2) above only in relation to the conditions imposed on bail.]

(3) Written notice of appeal shall be immediately given to the opposite party by a party appealing under this section.

[F312 (3A) A notice of appeal under this section is to be lodged with the clerk of the court from which the appeal is to be taken.

(3B) When an appeal is made under this section, that clerk shall without delay—

(a) send a copy of the notice of appeal to the judge whose decision is the subject of the appeal; and

(b) request the judge to provide a report of the reasons for that decision.

(3C) The judge shall, as soon as is reasonably practicable, provide that clerk with the judge's report of those reasons.

[F313 (3CA) The clerk of the court from which the appeal is to be taken (unless that clerk is the Clerk of Justiciary) must—

(a) send the notice of appeal without delay to the clerk of the appropriate Appeal Court, and

(b) before the end of the day after the day of receipt of the notice of appeal, send the judge's report (if provided by then) to the clerk of the appropriate Appeal Court.]

(3F) The [F314 clerk of the appropriate Appeal Court] shall, upon receipt of the notice of appeal, without delay fix a diet for the hearing of the appeal.

(3G) The [F315 clerk of the appropriate Appeal Court] shall send a copy of the judge's report to—

(a) the accused or his solicitor; and

(b) the Crown Agent.

(3H) [F316 In a case where the Sheriff Appeal Court is the appropriate Appeal Court, if] the judge's report is not sent as mentioned in subsection [F317 (3CA)] above—

(a) the [F318 appropriate Appeal Court] may call for the report to be submitted to it within such period as it may specify; or

(b) if it thinks fit, hear and determine the appeal without the report.

(3I) Subject to subsection (3G) above, the judge's report shall be available only to the [F319 appropriate Appeal Court], the parties and, on such conditions as may be prescribed by Act of Adjournal, such other persons or classes of person as may be so prescribed.]

(4) An appeal under this section shall be disposed of by the [F320 appropriate Appeal Court] or any [F321 judge of the appropriate Appeal Court] in court or in chambers after such inquiry and hearing of parties as shall seem just.

(5) Where an [F307 accused] in an appeal under this section is under 21 years of age, section 51 of this Act shall apply to the [F322 appropriate Appeal Court] or, as the case may be, the [F323 judge of the appropriate Appeal Court] when disposing of the appeal as it applies to a court when remanding or committing a person of the [F307 accused’s] age for trial or sentence.

(6) In the event of the appeal of the public prosecutor under this section being refused, the court may award expenses against him.

(7) When an appeal is taken by the public prosecutor either against the grant of bail or against the amount fixed, the [F307 accused] to whom bail has been granted [F324 (other than an accused to whom subsection (7B) below applies)] shall, if the bail fixed has been found by him, be liberated after 72 hours from the granting of [F325 bail], whether the appeal has been disposed of or not, unless the [F326 appropriate Appeal Court] grants an order for his further detention in custody.

[F327 (7B) Where, in relation to an accused admitted to bail under section 65(8C) of this Act, the public prosecutor appeals against the conditions imposed on bail, the accused—

(a) may continue to be detained under the committal warrant for no more than 72 hours from the granting of bail or for such longer period as [F328 the appropriate Appeal Court] may allow; and

(b) on expiry of that period, shall, whether the appeal has been disposed of or not, be released on bail subject to the conditions imposed.]

(8) In computing the period mentioned in subsection (7) above, Sundays and public holidays, whether general or court holidays, shall be excluded.

(9) When an appeal is taken under this section by the prosecutor in summary proceedings against the fact that the accused has been ordained to appear, subsections (7) and (8) above shall apply as they apply in the case of an appeal against the granting of bail or the amount fixed.

(10) Notice to the governor of the prison of the issue of an order such as is mentioned in subsection (7) above within the time mentioned in that subsection bearing to be sent by the [F329 clerk of the appropriate Appeal Court] or the Crown Agent shall be sufficient warrant for the detention of the [F307 accused] pending arrival of the order in due course of post.

[F330 (11) In this section—

• “appropriate Appeal Court” means—

  (a)

  in the case of an appeal under this section against a bail decision of the High Court or a judge of the High Court, that Court,

  (b)

  in the case of an appeal under this section against a bail decision of the Sheriff Appeal Court, the High Court,

  (c)

  in the case of an appeal under this section against a bail decision of a sheriff (whether in solemn or summary proceedings) or a JP court, the Sheriff Appeal Court,

• “judge of the appropriate Appeal Court” means—

  (a)

  in a case where the High Court is the appropriate Appeal Court, judge of that Court,

  (b)

  in a case where the Sheriff Appeal Court is the appropriate Appeal Court, Appeal Sheriff,

• “the clerk of the appropriate Appeal Court” means—

  (a)

  in a case where the High Court is the appropriate Appeal Court, the Clerk of Justiciary,

  (b)

  in a case where the Sheriff Appeal Court is the appropriate Appeal Court, the Clerk of that Court.

(12) In a case where the Sheriff Appeal Court is the appropriate Appeal Court, the references in subsections (3G)(b) and (10) to the Crown Agent are to be read as references to the prosecutor.]

Textual Amendments

F306 Words in s. 32(1) substituted (9.8.2000) by 2000 asp 9, s. 4

F307 Words in s. 32(1)(2)(5)(7)(10) substituted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(2)(a)

F308 Words in s. 32(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(2), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F309 Words in s. 32(2) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(2)(b)

F310 Words in s. 32(2) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(2), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F311 S. 32(2A) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 11(a); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F312 S. 32(3A)-(3I) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 4(2), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F313 S. 32(3CA) substituted for s. 32(3D)(3E) (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(3), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F314 Words in s. 32(3F) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(4), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F315 Words in s. 32(3G) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(4), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F316 Words in s. 32(3H) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(5)(a), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F317 Word in s. 32(3H) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(5)(b), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F318 Words in s. 32(3H)(a) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(2), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F319 Words in s. 32(3I) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(2), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F320 Words in s. 32(4) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(2), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F321 Words in s. 32(4) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(6), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F322 Words in s. 32(5) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(2), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F323 Words in s. 32(5) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(6), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F324 Words s. 32(7) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 11(b); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F325 Words in s. 32(7) substituted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(2)(c)

F326 Words in s. 32(7) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(2), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F327 S. 32(7B) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 11(c); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F328 Words in s. 32(7B)(a) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(7), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F329 Words in s. 32(10) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(4), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

F330 S. 32(11)(12) inserted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 122(8), 138(2); S.S.I. 2015/247, art. 2, sch. (with art. 7)

[F331 32A Bail after conviction: prosecutor's attitude S

(1) Where—

(a) a person has been convicted in any proceedings of an offence; and

(b) a question of bail (including as to bail conditions) subsequently arises in the proceedings (whether before sentencing or pending appeal or otherwise),

the prosecutor and the convicted person must be given an opportunity to make submissions in relation to the question.

(2) But the attitude of the prosecutor towards the question does not restrict the court's exercise of its discretion in determining the question in accordance with the rules applying in the case.

(3) Despite subsection (1) above, the prosecutor need not be given an opportunity to make submissions in relation to a question of bail arising under section 245J of this Act.

(4) This section is without prejudice to any other right of the parties to be heard.]

Textual Amendments

F331 S. 32A inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 5, 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

33 Bail: no fees exigible. S

No clerks fees, court fees or other fees or expenses shall be exigible from or awarded against an accused in respect of [F332 a decision on bail under section 22A above, an] application for bail or of the appeal of such [F333 a decision or] application to the High Court.

Textual Amendments

F332 Words in s. 33 substituted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(3)(a)

F333 Words in s. 33 inserted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(3)(b)

PART IV S Petition Procedure

Warrants S

34 Petition for warrant. S

(1) A petition for warrant to arrest and commit a person suspected of or charged with crime may be in the forms—

(a) set out in Schedule 2 to this Act; or

(b) prescribed by Act of Adjournal,

or as nearly as may be in such form; and Schedule 3 to this Act shall apply to any such petition as it applies to the indictment.

(2) If on the application of the procurator fiscal, a sheriff is satisfied that there is reasonable ground for suspecting that an offence has been or is being committed by a body corporate, the sheriff shall have the like power to grant warrant for the citation of witnesses and the production of documents and articles as he would have if a petition charging an individual with the commission of the offence were presented to him.

Modifications etc. (not altering text)

C23 S. 34(2) applied (26.12.2023) by Economic Crime and Corporate Transparency Act 2023 (c. 56), ss. 198(1)(2), 219(3)(c)

C24 S. 34(2) applied (26.10.2023 for specified purposes, 1.9.2025 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), ss. 203(1)(2), 219(1)(2)(b); S.I. 2025/349, reg. 3

[F334 Petition proceedings outwith sheriffdom S

Textual Amendments

F334 S. 34A and preceding cross-heading inserted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 31, 84; S.S.I. 2008/42, art. 3, Sch.

34A Petition proceedings outwith sheriffdom S

(1) Where the prosecutor believes—

(a) that, because of exceptional circumstances (and without an order under subsection (3) below), it is likely that there would be an unusually high number of accused persons appearing from custody for the first calling of cases on petition in the sheriff courts in the sheriffdom; and

(b) that it would not be practicable for those courts to deal with all the cases involved,

the prosecutor may apply to the sheriff principal for the order referred to in subsection (2) below.

(2) For the purposes of subsection (1) above, the order is for authority for petition proceedings against some or all of the accused persons to be—

(a) taken at a sheriff court in another sheriffdom; and

(b) maintained—

(i) there; or

(ii) at any of the sheriff courts referred to in subsection (1) above as may at the first calling of the case be appointed for further proceedings.

(3) On an application under subsection (1) above, the sheriff principal may make the order sought with the consent of the sheriff principal of the other sheriffdom.

(4) An order under subsection (3) above may be made by reference to a particular period or particular circumstances.

(5) This section does not confer jurisdiction for any subsequent proceedings on indictment.]

Judicial examination S

35 Judicial examination. S

(1) The accused’s solicitor shall be entitled to be present at the examination.

(2) The sheriff may delay the examination for a period not exceeding 48 hours from and after the time of the accused’s arrest, in order to allow time for the attendance of the solicitor.

F335 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F336 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F337 (4A) An accused charged with [F338 an offence listed in subsection (4AA)(b)] shall, as soon as he is brought before the sheriff for examination on the charge, be told—

[F339 (a) that his case at, or for the purposes of, any relevant hearing F340 ... in the course of the proceedings may be conducted only by a lawyer,]

(b) that it is, therefore, in his interests, if he has not already done so, to get the professional assistance of a solicitor; and

(c) that, if he does not engage a solicitor for the purposes of [F341 the conduct of his case at or for the purposes of the] [F342 hearing], the court will do so.

[F343 (4AA) For the purposes of subsection (4A)—

(a) “relevant hearing” is to be construed in accordance with section 288C(1A) or (as the case may be) 288DC(4),

(b) the list is—

(i) an offence to which section 288C applies (certain sexual offending),

(ii) an offence to which section 288DC applies (domestic abuse cases).]

(4B) A failure to comply with subsection (4A) above does not affect the validity or lawfulness of the examination or of any other element of the proceedings against the accused.]

F344 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) Where the accused is brought before the sheriff for further examination the sheriff may delay that examination for a period not exceeding 24 hours in order to allow time for the attendance of the accused’s solicitor.

[F345 (6A) In proceedings before the sheriff in examination or further examination, the accused is not to be given an opportunity to make a declaration in respect of any charge.]

(7) Any proceedings before the sheriff in examination or further examination shall be conducted in chambers and outwith the presence of any co-accused.

(8) This section applies to procedure on petition, without prejudice to the accused being tried summarily by the sheriff for any offence in respect of which he has been committed until liberated in due course of law.

Textual Amendments

F335 S. 35(3) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 78(2)(a), 117(2); S.S.I. 2016/426, art. 2, sch.

F336 S. 35(4) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 78(2)(a), 117(2); S.S.I. 2016/426, art. 2, sch.

F337 S. 35(4A)(4B) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 3, Sch. para. 3; S.S.I. 2002/443, art. 3 (with art. 4(3))

F338 Words in s. 35(4A) substituted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(2)(a); S.S.I. 2018/387, reg. 2 (with reg. 7)

F339 S. 35(4A)(a) substituted for s. 35(4A)(za)(a) (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 36(a); S.S.I. 2011/178, art. 2, sch.

F340 Words in s. 35(4A)(a) repealed (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(2)(b); S.S.I. 2018/387, reg. 2 (with reg. 7)

F341 Words in s. 35(4A)(c) inserted (4.12.2004) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 12(b); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F342 Word in s. 35(4A)(c) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 36(b); S.S.I. 2011/178, art. 2, sch.

F343 S. 35(4AA) inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(2)(c); S.S.I. 2018/387, reg. 2 (with reg. 7)

F344 S. 35(5) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 78(2)(a), 117(2); S.S.I. 2016/426, art. 2, sch.

F345 S. 35(6A) inserted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 78(1), 117(2); S.S.I. 2016/426, art. 2, sch.

F346 36 Judicial examination: questioning by prosecutor. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F346 S. 36 repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 78(2)(b), 117(2); S.S.I. 2016/426, art. 2, sch. (with art. 3)

F347 37 Judicial examination: record of proceedings. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F347 S. 37 repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 78(2)(b), 117(2); S.S.I. 2016/426, art. 2, sch. (with art. 3)

F348 38 Judicial examination: rectification of record of proceedings. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F348 S. 38 repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 78(2)(b), 117(2); S.S.I. 2016/426, art. 2, sch. (with art. 3)

39 Judicial examination: charges arising in different districts. S

(1) An accused against whom there are charges in more than one sheriff court district may be brought before the sheriff of any one such district at the instance of the procurator fiscal of such district for examination on all or any of the charges.

(2) Where an accused is brought for examination as mentioned in subsection (1) above, he may be dealt with in every respect as if all of the charges had arisen in the district where he is examined.

(3) This section is without prejudice to the power of the Lord Advocate under section 10 of this Act to determine the court before which the accused shall be tried on such charges.

Committal S

40 Committal until liberated in due course of law. S

(1) Every petition shall be signed and no accused shall be committed until liberated in due course of law for any crime or offence without a warrant in writing expressing the particular charge in respect of which he is committed.

(2) Any such warrant for imprisonment which either proceeds on an unsigned petition or does not express the particular charge shall be null and void.

(3) The accused shall immediately be given a true copy of the warrant for imprisonment signed by the constable or person executing the warrant before imprisonment or by the prison officer receiving the warrant.

PART V U.K. Children and Young Persons

[F349 41 Age of criminal responsibility U.K.

A child under the age of 12 years cannot commit an offence.]

Textual Amendments

F349 S. 41 substituted (17.12.2021) by Age of Criminal Responsibility (Scotland) Act 2019 (asp 7), ss. 1, 84(2); S.S.I. 2021/449, reg. 2

F350 41A Prosecution of children under 12 U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F350 S. 41A repealed (17.12.2021) by Age of Criminal Responsibility (Scotland) Act 2019 (asp 7), ss. 2(1), 84(2) (with s. 2(2)); S.S.I. 2021/449, reg. 2

42 Prosecution of children. S

(1) [F351 A child aged 12 years or more but under 16 years may not] be prosecuted for any offence except on the instructions of the Lord Advocate, or at [F352 the instance of the Lord Advocate]; and no court other than the High Court and the sheriff court shall have jurisdiction over [F353 such a child] for an offence.

(2) Where a child is charged with any offence, his parent or guardian may in any case, and shall, if he can be found and resides within a reasonable distance, be required to attend at the court before which the case is heard or determined during all the stages of the proceedings, unless the court is satisfied that it would be unreasonable to require his attendance.

F354 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) For the purpose of enforcing the attendance of a parent or guardian and enabling him to take part in the proceedings and enabling orders to be made against him, rules may be made under section 305 of this Act, for applying, with the necessary adaptations and modifications, such of the provisions of this Act relating to summary proceedings as appear appropriate for the purpose.

(5) The parent or guardian whose attendance is required under this section is—

(a) the parent who has parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the M10 Children (Scotland) Act 1995) in relation to the child; or

(b) the guardian having actual possession and control of him.

(6) The attendance of the parent of a child shall not be required under this section in any case where the child was before the institution of the proceedings removed from the care or charge of his parent by an order of a court.

F355 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) Where a local authority receive notification under [F356 section 24 of the Criminal Justice (Scotland) Act 2016] they shall make such investigations and submit to the court a report which shall contain such information as to the home surroundings of the child as appear to them will assist the court in the disposal of his case, and the report shall contain information, which the appropriate education authority shall have a duty to supply, as to the school record, health and character of the child.

(9) Any child F357 ... being conveyed to or from any criminal court, or waiting before or after attendance in such court, shall be prevented from associating with an adult (not being a relative) who is charged with any offence other than an offence with which the child is jointly charged.

F358 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F351 Words in s. 42(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 52(3)(a), 206(1); S.S.I. 2011/178, art. 2, sch.

F352 Words in s. 42(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 52(3)(b), 206(1); S.S.I. 2011/178, art. 2, sch.

F353 Words in s. 42(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 52(3)(c), 206(1); S.S.I. 2011/178, art. 2, sch.

F354 S. 42(3) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 31(a); S.S.I. 2017/345, art. 3, sch. (with art. 4)

F355 S. 42(7) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 31(b); S.S.I. 2017/345, art. 3, sch. (with art. 4)

F356 Words in s. 42(8) substituted (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 31(c); S.S.I. 2017/345, art. 3, sch. (with art. 4)

F357 Words in s. 42(9) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 31(d); S.S.I. 2017/345, art. 3, sch. (with art. 4)

F358 S. 42(10) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 31(e); S.S.I. 2017/345, art. 3, sch. (with art. 4)

Marginal Citations

M10 1995 c.36.

F359 43 Arrangements where children arrested. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F359 S. 43 repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 27(c); S.S.I. 2017/345, art. 3, sch. (with arts. 4, 5)

44 Detention of children. U.K.

(1) Where a child appears before the sheriff in summary proceedings and pleads guilty to, or is found guilty of, an offence to which this section applies, the sheriff may order that he be detained in [F360 a residential establishment] for such period not exceeding one year as may be specified in the order in such place (in any part of the United Kingdom) as [F361 the appropriate local authority] may, from time to time, consider appropriate.

(2) This section applies to any offence [F362 (other than, if the child is under the age of 16 years, an offence under section 9(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) or that section as applied by section 234AA(11) of this Act)] in respect of which it is competent to impose imprisonment on a person of the age of 21 years or more.

(3) Where a child in respect of whom an order is made under this section is detained by the appropriate local authority, that authority shall have the same powers and duties in respect of the child as they would have if he were subject to a [F363 compulsory supervision order].

(4) Where a child in respect of whom an order is made under this section is also subject to a [F364 compulsory supervision order or interim compulsory supervision order], subject to subsection (6) below, the [F364 compulsory supervision order or interim compulsory supervision order] shall be of no effect during any period for which he is required to be detained under the order.

(5) The Secretary of State may, by regulations F365 ..., make such provision as he considers necessary as regards the detention in secure accommodation of children in respect of whom orders have been made under this section.

[F366 (5A) Regulations under subsection (5) may, in particular, make provision about the circumstances in which such children may remain in secure accommodation despite attaining the age of 18 years (provided that no person may remain in such accommodation after attaining the age of 19 years).

(5B) Regulations under subsection (5) are subject to the affirmative procedure.]

(6) Where a child is detained in [F367 a residential establishment] in pursuance of an order under—

(a) subsection (1) above, he shall be released from such detention not later than the date by which [F368 the period mentioned in subsection (6A)] has (following commencement of the detention) elapsed but, without prejudice to subsection (7) below, until the entire [F369 period specified in the order] has so elapsed may be required by the local authority to submit to supervision in accordance with such conditions as they consider appropriate;

(b) subsection (1) above or (8) below, the local authority may at any time review his case and may, in consequence of such review and after having regard to the best interests of the child and the need to protect members of the public, release the child—

(i) for such period and on such conditions as the local authority consider appropriate; or

(ii) unconditionally.

[F370 (6A) The period referred to in subsection (6)(a) is—

(a) where subsection (6B) applies, one-half of the period specified in the order,

(b) in any other case, two-fifths of the period specified in the order.

(6B) This subsection applies where the offence to which the order relates is—

(a) an offence listed in paragraphs 36 to 60 of schedule 3 of the Sexual Offences Act 2003, or

(b) a domestic abuse offence.]

(7) Where a child released under paragraph (a) or (b)(ii) of subsection (6) above is subject to a [F364 compulsory supervision order or interim compulsory supervision order], the effect of that [F371 order] shall commence or, as the case may be, resume upon such release.

(8) If, while released under paragraph (a) or (b) of subsection (6) above (and before the date on which the entire period mentioned in the said paragraph (a) has, following the commencement of the detention, elapsed), a child commits an offence to which this section applies and (whether before or after that date) pleads guilty to or is found guilty of it a court may, instead of or in addition to making any other order in respect of that plea or finding, order that he be returned to the residential [F372 establishment from which the child was released] and that his detention in that [F373 establishment] or any other such [F374 establishment chosen by the appropriate local] authority shall continue for the whole or any part of the period which—

(a) begins with the date of the order for his return; and

(b) is equal in length to the period between the date on which the new offence was committed and the date on which that entire period elapses.

(9) An order under subsection (8) above for return to [F375 a residential establishment chosen] by the appropriate local authority—

(a) shall be taken to be an order for detention in [F376 a residential establishment] for the purpose of this Act and any appeal; and

(b) shall, as the court making that order may direct, either be for a period of detention in [F377 a residential establishment] before and to be followed by, or to be concurrent with, any period of such detention to be imposed in respect of the new offence (being in either case disregarded in determining the appropriate length of the period so imposed).

(10) Where a local authority consider it appropriate that a child in respect of whom an order has been made under subsection (1) or (8) above should be detained in a place in any part of the United Kingdom outside Scotland, the order shall be a like authority as in Scotland to the person in charge of the place to restrict the child’s liberty to such an extent as that person may consider appropriate having regard to the terms of the order.

(11) In this section—

• “the appropriate local authority” means—

  (a)

  where the child usually resides in Scotland, the local authority for the area in which he usually resides;

  (b)

  in any other case, the local authority for the area in which the offence was committed; F378 ...

• [F379 “domestic abuse offence” means—

  (a)

  an offence that is aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, or

  (b)

  an offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018,]

• [F380 “residential establishment” and “secure accommodation” have the meanings given by section 202(1) of the Children’s Hearings (Scotland) Act 2011.]

Textual Amendments

F360 Words in s. 44(1) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(2)(a)(i), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F361 Words in s. 44(1) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(2)(a)(ii), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F362 Words in s. 44(2) inserted (S.) (28.10.2004) by Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), ss. 10(2), 145(2); S.S.I. 2004/420, art. 3, Sch. 1

F363 Words in s. 44(3) substituted (24.6.2013) by The Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 (S.I. 2013/1465), art. 1(2), Sch. 3 para. 2(a)

F364 Words in s. 44(4)(7) substituted (24.6.2013) by The Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 (S.I. 2013/1465), art. 1(2), Sch. 3 para. 2(b)

F365 Words in s. 44(5) repealed (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(2)(b), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F366 S. 44(5A)(5B) inserted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(2)(c), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F367 Words in s. 44(6) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(2)(d), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F368 Words in s. 44(6)(a) substituted (11.2.2025) by Prisoners (Early Release) (Scotland) Act 2025 (asp 1), ss. 2(4)(a)(i), 8(2) (with sch. para. 3, 4); S.S.I. 2025/17, reg. 2

F369 Words in s. 44(6)(a) substituted (11.2.2025) by Prisoners (Early Release) (Scotland) Act 2025 (asp 1), ss. 2(4)(a)(ii), 8(2) (with sch. para. 3, 4); S.S.I. 2025/17, reg. 2

F370 S. 44(6A)(6B) inserted (11.2.2025) by Prisoners (Early Release) (Scotland) Act 2025 (asp 1), ss. 2(4)(b), 8(2) (with sch. para. 3, 4); S.S.I. 2025/17, reg. 2

F371 Word in s. 44(7) substituted (24.6.2013) by The Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 (S.I. 2013/1465), art. 1(2), Sch. 3 para. 2(c)

F372 Words in s. 44(8) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(2)(e)(i), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F373 Word in s. 44(8) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(2)(e)(ii), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F374 Words in s. 44(8) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(2)(e)(iii), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F375 Words in s. 44(9) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(2)(f)(i), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F376 Words in s. 44(9)(a) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(2)(f)(ii), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F377 Words in s. 44(9)(b) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(2)(f)(ii), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F378 Word in s. 44(11) repealed (11.2.2025) by Prisoners (Early Release) (Scotland) Act 2025 (asp 1), ss. 2(4)(c)(i), 8(2) (with sch. para. 3, 4); S.S.I. 2025/17, reg. 2

F379 Words in s. 44(11) inserted (11.2.2025) by Prisoners (Early Release) (Scotland) Act 2025 (asp 1), ss. 2(4)(c)(ii), 8(2) (with sch. para. 3, 4); S.S.I. 2025/17, reg. 2

F380 Words in s. 44(11) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(2)(g), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

Modifications etc. (not altering text)

C25 S. 44 modified (1.4.1997) by S.I. 1996/3255, art. 13(1)

[F381 44A Appeal against detention in secure accommodation U.K.

(1) A child, or a relevant person in relation to the child, may appeal to the sheriff against a decision by a local authority to detain the child in secure accommodation in pursuance of an order made under section 44 of this Act.

(2) An appeal under subsection (1) may be made jointly by—

(a) the child and one or more relevant persons in relation to the child; or

(b) two or more relevant persons in relation to the child.

(3) An appeal must not be held in open court.

(4) The sheriff may determine an appeal by—

(a) confirming the decision to detain the child in secure accommodation; or

(b) quashing that decision and directing the local authority to move the child to be detained in residential accommodation which is not secure accommodation.

(5) The Scottish Ministers may by regulations make further provision about appeals under subsection (1).

(6) Regulations under subsection (5) may in particular—

(a) specify the period within which an appeal may be made;

(b) make provision about the hearing of evidence during an appeal;

(c) provide for appeals to the [F382 Sheriff Appeal Court] and Court of Session against the determination of an appeal.

(7) Regulations under subsection (5) are subject to the affirmative procedure.

(8) In this section—

• “relevant person”, in relation to a child, means any person who is a relevant person in relation to the child for the purposes of the Children's Hearings (Scotland) Act 2011 (including anyone deemed to be a relevant person in relation to the child by virtue of section 81(3), 160(4)(b) or 164(6) of that Act);

• “secure accommodation” has the same meaning as in section 44 of this Act.]

Textual Amendments

F381 S. 44A inserted (1.8.2014 for specified purposes, 1.2.2016 in so far as not already in force) by Children and Young People (Scotland) Act 2014 (asp 8), ss. 91, 102(3); S.S.I. 2014/131, art. 2(2)(3), sch.; S.S.I. 2015/406, art. 3(1) (with art. 4)

F382 Words in s. 44A(6)(c) substituted (1.1.2016) by The Courts Reform (Scotland) Act 2014 (Consequential and Supplemental Provisions) Order 2015 (S.S.I. 2015/402), art. 1, sch. para. 3 (with art. 5)

45 Security for child’s good behaviour. S

(1) Where a child has been charged with an offence the court may order his parent or guardian to give security for his co-operation in securing the child’s good behaviour.

(2) Subject to subsection (3) below, an order under this section shall not be made unless the parent or guardian has been given the opportunity of being heard.

(3) Where a parent or guardian has been required to attend and fails to do so, the court may make an order under this section.

(4) Any sum ordered to be paid by a parent or guardian on the forfeiture of any security given under this section may be recovered from him by civil diligence or imprisonment in like manner as if the order had been made on the conviction of the parent or guardian of the offence with which the child was charged.

(5) In this section “parent” means either of the child’s parents, if that parent has parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the Children (Scotland) Act 1995) in relation to him.

46 Presumption and determination of age of child. S

(1) Where a person charged with an offence [F383 , whose age is not specified in the indictment or complaint in relation to that offence,]is brought before a court other than for the purpose of giving evidence, and it appears to the court that he is a child, the court shall make due enquiry as to the age of that person, and for that purpose shall take such evidence as may be forthcoming at the hearing of the case, and the age presumed or declared by the court to be the age of that person shall, for the purposes of this Act or the M11 Children and Young Persons (Scotland) Act 1937, be deemed to be the true age of that person.

(2) The court in making any inquiry in pursuance of subsection (1) above shall have regard to the definition of child for the purposes of this Act.

(3) [F384 Without prejudice to section 255A of this Act,]Where in an indictment or complaint for—

(a) an offence under the Children and Young Persons (Scotland) 1937;

(b) any of the offences mentioned in paragraphs 3 and 4 of Schedule 1 to this Act; or

(c) an offence under section 1, 10(1) to (3) or 12 of the M12 Criminal Law (Consolidation) (Scotland) Act 1995,

it is alleged that the person by or in respect of whom the offence was committed was a child or was under or had attained any specified age, and he appears to the court to have been at the date of the commission of the alleged offence a child, or to have been under or to have attained the specified age, as the case may be, he shall for the purposes of this Act or the M13 Children and Young Persons (Scotland) Act 1937 or Part I of the Criminal Law (Consolidation) (Scotland) Act 1995 be presumed at that date to have been a child or to have been under or to have attained that age, as the case may be, unless the contrary is proved.

(4) Where, in an indictment or complaint for an offence under the Children and Young Persons (Scotland) Act 1937 or any of the offences mentioned in Schedule 1 to this Act, it is alleged that the person in respect of whom the offence was committed was a child or was a young person, it shall not be a defence to prove that the person alleged to have been a child was a young person or the person alleged to have been a young person was a child in any case where the acts constituting the alleged offence would equally have been an offence if committed in respect of a young person or child respectively.

(5) An order or judgement of the court shall not be invalidated by any subsequent proof that—

(a) the age of a person mentioned in subsection (1) above has not been correctly stated to the court; or

(b) the court was not informed that at the material time the person was subject to a [F385 compulsory supervision order or interim compulsory supervision order] or that his case had been referred to a children’s hearing by virtue of regulations made under [F386 section 190 of the Children’s Hearings (Scotland) Act 2011 (asp 1).]

(6) Where it appears to the court that a person mentioned in subsection (1) above has attained the age of 17 years, he shall for the purposes of this Act or the Children and Young Persons (Scotland) Act 1937 be deemed not to be a child.

(7) In subsection (3) above, references to a child (other than a child charged with an offence) shall be construed as references to a child under the age of 17 years; but except as aforesaid references in this section to a child shall be construed as references to a child within the meaning of section 307 of this Act.

Textual Amendments

F383 Words in s. 46(1) inserted (1.8.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(4)(a); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F384 Words in s. 46(3) inserted (1.8.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(4)(a); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F385 Words in s. 46(5)(b) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(3)(a)

F386 Words in s. 46(5)(b) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(3)(b)

Marginal Citations

M11 1937 c.37.

M12 1995 c.39.

M13 1937 c.37.

47 Restriction on report of proceedings involving children. U.K.

(1) Subject to subsection (3) below, no newspaper report of any proceedings in a court shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any person under the age of [F387 18] years concerned in the proceedings, either—

(a) as being a person against or in respect of whom the proceedings are taken; or

(b) as being a witness in the proceedings.

(2) Subject to subsection (3) below, no picture which is, or includes, a picture of a person under the age of [F388 18] years concerned in proceedings as mentioned in subsection (1) above shall be published in any newspaper in a context relevant to the proceedings.

(3) The requirements of subsections (1) and (2) above shall be applied in any case mentioned in any of the following paragraphs to the extent specified in that paragraph—

(a) where a person under the age of [F389 18] years is concerned in the proceedings as a witness only and no one against whom the proceedings are taken is under the age of [F389 18] years, the requirements shall not apply unless the court so directs;

(b) where, at any stage of the proceedings, the court, if it is satisfied that it is in the public interest so to do, directs that the requirements (including the requirements as applied by a direction under paragraph (a) above) shall be dispensed with to such extent as the court may specify; and

(c) where the Secretary of State, after completion of the proceedings, if satisfied as mentioned in paragraph (b) above, by order dispenses with the requirements to such extent as may be specified in the order.

(4) This section shall, with the necessary modifications, apply in relation to sound and television programmes included in a programme service (within the meaning of the M14 Broadcasting Act 1990) as it applies in relation to newspapers.

(5) A person who publishes matter in contravention of this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 of the standard scale.

(6) In this section, references to a court shall not include a court in England, Wales or Northern Ireland.

Textual Amendments

F387 Word in s. 47(1) substituted (1.9.2015) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 15, 34; S.S.I. 2015/200, art. 2(2), sch.

F388 Word in s. 47(2) substituted (1.9.2015) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 15, 34; S.S.I. 2015/200, art. 2(2), sch.

F389 Word in s. 47(3)(a) substituted (1.9.2015) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 15, 34; S.S.I. 2015/200, art. 2(2), sch.

Modifications etc. (not altering text)

C26 S. 47 modified (S.) (31.3.2006) by Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), ss. 111(6), 145(2); S.S.I. 2004/420, art. 2 (as amended by S.S.I. 2005/553, art. 2)

Marginal Citations

M14 1990 c.42.

48 Power to refer certain children to reporter. S

(1) A court by or before which a person is convicted of having committed an offence to which this section applies may refer—

(a) a child in respect of whom an offence mentioned in paragraph (a) or (b) of subsection (2) below has been committed; or

(b) any child who is, or who is likely to become, a member of the same household as the person who has committed an offence mentioned in paragraph (b) or (c) of that subsection or the person in respect of whom the offence so mentioned was committed,

to the Principal Reporter, and certify that the offence shall be a ground established for the purposes of [F390 the Children’s Hearings (Scotland) Act 2011 (asp 1).]

(2) This section applies to an offence—

(a) under section 21 of the M15 Children and Young Persons (Scotland) Act 1937;

(b) mentioned in Schedule 1 to this Act; or

(c) in respect of a person aged 17 years or over which constitutes the crime of incest.

Textual Amendments

F390 Words in s. 48(1) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(4)

Marginal Citations

M15 1937 c.37.

49 Reference or remit to children’s hearing. S

(1) Where a child who is not subject to a [F391 compulsory supervision order or interim compulsory supervision order] pleads guilty to, or is found guilty of, an offence the court—

(a) instead of making an order on that plea or finding, may remit the case to the Principal Reporter to arrange for the disposal of the case by a children’s hearing; or

(b) on that plea or finding may request the Principal Reporter to arrange a children’s hearing for the purposes of obtaining their advice as to the treatment of the child.

(2) Where a court has acted in pursuance of paragraph (b) of subsection (1) above, the court, after consideration of the advice received from the children’s hearing may, as it thinks proper, itself dispose of the case or remit the case as mentioned in paragraph (a) of that subsection.

(3) Where a child who is subject to a [F392 compulsory supervision order or interim compulsory supervision order] pleads guilty to, or is found guilty of, an offence the court dealing with the case if it is—

(a) the High Court, may; and

(b) the sheriff [F393 JP court] , shall,

request the Principal Reporter to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the child, and on consideration of that advice may, as it thinks proper, itself dispose of the case or remit the case as mentioned in subsection (1)(a) above [F394 except that where [F395 section 51A of the Firearms Act 1968 or section 29 of the Violent Crime Reduction Act 2006 applies] it shall itself dispose of the case] .

(4) [F396 Subject to any appeal against any decision to remit made under subsection (1)(a) above or (7)(b) below,] where a court has remitted a case to the Principal Reporter under this section, the jurisdiction of the court in respect of the child shall cease, and his case shall stand referred to a children’s hearing.

(5) Nothing in this section shall apply to a case in respect of an offence the sentence for which is fixed by law.

(6) Where a person who is—

(a) not subject to a [F397 compulsory supervision order or interim compulsory supervision order] ;

(b) over the age of 16; and

(c) not within six months of attaining the age of 18,

is charged summarily with an offence and pleads guilty to, or has been found guilty of, the offence the court may request the Principal Reporter to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the person.

(7) On consideration of any advice obtained under subsection (6) above, the court may, as it thinks proper—

(a) itself dispose of the case; or

(b) where the hearing have so advised, remit the case to the Principal Reporter for the disposal of the case by a children’s hearing.

Textual Amendments

F391 Words in s. 49(1) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(5)

F392 Words in s. 49(3) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(5)

F393 Words in s. 49(3)(b) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 26(d); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F394 Words in s. 49(3) inserted (22.1.2004) by Criminal Justice Act 2003 (c. 44), ss. 290(2), 336; S.I. 2004/81, art. 3(2)(b)

F395 Words in s. 49(3) substituted (6.4.2007) by Violent Crime Reduction Act 2006 (c. 38), ss. 49, 66(2), Sch. 1 para. 4(2); S.I. 2007/858, art. 2(g)

F396 Words in s. 49(4) inserted (1.8.1997) by 1997 c. 48, s. 23(a); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F397 Words in s. 49(6)(a) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(5)

Modifications etc. (not altering text)

C27 S. 49(3): power to amend conferred (22.1.2004) by Criminal Justice Act 2003 (c. 44), ss. 291(1)(c), 336; S.I. 2004/81, art. 3(2)(b)

50 Children and certain proceedings. S

(1) No child under 14 years of age (other than an infant in arms) shall be permitted to be present in court during any proceedings against any other person charged with an offence unless his presence is required as a witness or otherwise for the purposes of justice [F398 or the court consents to his presence].

(2) Any child present in court when, under subsection (1) above, he is not to be permitted to be so shall be ordered to be removed.

(3) Where, in any proceedings in relation to an offence against, or any conduct contrary to, decency or morality, a person who, in the opinion of the court, is a child is called as a witness, the court may direct that all or any persons, not being—

(a) members or officers of the court;

(b) parties to the case before the court, their counsel or solicitors or persons otherwise directly concerned in the case;

(c) bona fide representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous reports of the proceedings; or

(d) such other persons as the court may specially authorise to be present,

shall be excluded from the court during the taking of the evidence of that witness.

(4) The powers conferred on a court by subsection (3) above shall be in addition and without prejudice to any other powers of the court to hear proceedingsin camera.

(5) Where in any proceedings relating to any of the offences mentioned in Schedule 1 to this Act, the court is satisfied that the attendance before the court of any person under the age of 17 years in respect of whom the offence is alleged to have been committed is not essential to the just hearing of the case, the case may be proceeded with and determined in the absence of that person.

(6) Every court in dealing with a child who is brought before it as an offender shall have regard to the welfare of the child and shall in a proper case take steps for removing him from undesirable surroundings.

Textual Amendments

F398 Words in s. 50(1) inserted (27.9.1999) by 1999 c. 22, ss. 73(2), 108(3)(b) (with s. 107, Sch. 14 para. 7(2))

51 Remand and committal of children and young persons. S

(1) Where a court remands or commits for trial or for sentence a person under 21 years of age who is charged with or convicted of an offence and is not released on bail or ordained to appear, then, except as otherwise expressly provided by this section, the following provisions shall have effect—

(a) F399 . . . if he is under [F400 18] years of age F401 [F402 . . . , the court shall] commit him to the local authority [F403 which it considers appropriate] to be detained—

(i) where the court so requires, in secure accommodation [F404 (as defined in section 202(1) of the Children’s Hearings (Scotland) Act 2011 (asp 1))] ; and

(ii) in any other case, in a suitable place of safety chosen by the authority;

F405 (aa) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F406 (b) if he is a person who has attained the age of [F407 18 years, the court may commit the person to a young offenders institution,]

(bb) F408 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(2) Where any person is committed to a local authority F409 . . . under any provision of this Act, that authority F410 . . . shall be specified in the warrant, and he shall be detained by the authority F411 . . . for the period for which he is committed or until he is liberated in due course of law.

F412 (2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) F413 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) F413 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F414 (4A) The local authority which may be appropriate in relation to a power to commit a person under [F415 paragraph (a)] of subsection (1) F416 . . . may, without prejudice to the generality of those powers, be—

(a) the local authority for the area in which the court is situated;

(b) if the person is usually resident in Scotland, the local authority for the area in which he is usually resident;

(c) if the person is subject to a [F417 compulsory supervision order or interim compulsory supervision order, the implementation authority (as defined in section 202(1) of the Children’s Hearings (Scotland) Act 2011 (asp 1).]]

F418 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F419 (6) The Scottish Ministers may by regulations make provision about the detention in secure accommodation of children who have been committed to a local authority under subsection (1)(a).

(7) Regulations under subsection (6) may, in particular, make provision about the circumstances in which such children may remain in secure accommodation despite attaining the age of 18 years (provided that no person may remain in such accommodation after attaining the age of 19 years).

(8) Regulations under subsection (6) are subject to the affirmative procedure.]

Textual Amendments

F399 Words in s. 51(1)(a) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 23(3)(a)(i), 89; S.S.I. 2003/288, art. 2, Sch.

F400 Word in s. 51(1)(a) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 18(2)(a)(i), 38(3); S.S.I. 2024/211, reg. 2(c) (with reg. 3)

F401 Words in s. 51(1)(a) repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 64(2)(a)(i), 206(1); S.S.I. 2010/413, art. 2, Sch.

F402 Words in s. 51(1)(a) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(3)(a)(ii)}, 89; S.S.I. 2003/288, art. 2, Sch.

F403 Words in s. 51(1)(a) substituted (1.8.1997) by 1997 c. 48, s. 56(2)(a); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F404 Words in s. 51(1)(a)(i) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(6)(a)

F405 S. 51(1)(aa) repealed (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 18(2)(a)(ii), 38(3); S.S.I. 2024/211, reg. 2(c) (with reg. 3)

F406 S. 51(1)(b)(bb) substituted for (b) (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(3)(c)}, 89; S.S.I. 2003/288, art. 2, Sch.

F407 Words in s. 51(1)(b) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 18(2)(b), 38(3); S.S.I. 2024/211, reg. 2(c) (with reg. 3)

F408 S. 51(1)(bb) repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 64(2)(a)(ii), 206(1); S.S.I. 2010/413, art. 2, Sch.

F409 Words in s. 51(2) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(4)}, 89; S.S.I. 2003/288, art. 2, Sch.

F410 Words in s. 51(2) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(4)}, 89; S.S.I. 2003/288, art. 2, Sch.

F411 Words in s. 51(2) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(4)}, 89; S.S.I. 2003/288, art. 2, Sch.

F412 S. 51(2A) repealed (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), s. 38(3), sch. para. 16(2); S.S.I. 2024/211, reg. 2(j)(ii) (with reg. 3)

F413 S. 51(3)(4) repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 64(2)(c), 206(1); S.S.I. 2010/413, art. 2, Sch.

F414 S. 51(4A) inserted (1.8.1997) by 1997 c. 48, s. 56(4); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F415 Words in s. 51(4A) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 18(2)(c), 38(3); S.S.I. 2024/211, reg. 2(c) (with reg. 3)

F416 Words in s. 51(4A) repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 64(2)(d), 206(1); S.S.I. 2010/413, art. 2, Sch.

F417 Words in s. 51(4A)(c) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(6)(c)

F418 S. 51(5) repealed (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 18(2)(d), 38(3); S.S.I. 2024/211, reg. 2(c) (with reg. 3)

F419 S. 51(6)-(8) inserted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 18(2)(e), 38(3); S.S.I. 2024/211, reg. 2(c) (with reg. 3)

Modifications etc. (not altering text)

C28 S. 51 applied (1.12.2014) by The Mutual Recognition of Supervision Measures in the European Union (Scotland) Regulations 2014 (S.S.I. 2014/337), reg. 1, sch. 2 para. 18(1)

C29 S. 51(1)(a)(ii) modified (1.4.1997) by S.I. 1996/3255, reg. 14(1)(a)

S. 51(4)(b) modified (1.4.1997) by S.I. 1996/3255, reg. 14(1)(a)

PART VI S Mental Disorder

[F420 Criminal responsibility of mentally disordered persons S

Textual Amendments

F420 Ss. 51A, 51B and cross-headings inserted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 168, 206(1); S.S.I. 2012/160, art. 3, sch. (with art. 4)

51A Criminal responsibility of persons with mental disorder S

(1) A person is not criminally responsible for conduct constituting an offence, and is to be acquitted of the offence, if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct.

(2) But a person does not lack criminal responsibility for such conduct if the mental disorder in question consists only of a personality disorder which is characterised solely or principally by abnormally aggressive or seriously irresponsible conduct.

(3) The defence set out in subsection (1) is a special defence.

(4) The special defence may be stated only by the person charged with the offence and it is for that person to establish it on the balance of probabilities.

(5) In this section, “conduct” includes acts and omissions.

Modifications etc. (not altering text)

C30 S. 51A modified (27.11.2015 for specified purposes, 1.4.2016 in so far as not already in force) by Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c. 2), s. 28(3), Sch. 3 para. 23(6); S.R. 2015/376, art. 2; S.R. 2016/61, art. 2

Diminished responsibility S

51B Diminished responsibility S

(1) A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person's ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind.

(2) For the avoidance of doubt, the reference in subsection (1) to abnormality of mind includes mental disorder.

(3) The fact that a person was under the influence of alcohol, drugs or any other substance at the time of the conduct in question does not of itself—

(a) constitute abnormality of mind for the purposes of subsection (1), or

(b) prevent such abnormality from being established for those purposes.

(4) It is for the person charged with murder to establish, on the balance of probabilities, that the condition set out in subsection (1) is satisfied.

(5) In this section, “conduct” includes acts and omissions.]

Committal of mentally disordered persons S

52 Power of court to commit to hospital an accused suffering from mental disorder. S

(1) Where it appears to the prosecutor in any court before which a person is charged with an offence that the person may be suffering from mental disorder, it shall be the duty of the prosecutor to bring before the court such evidence as may be available of the mental condition of that person.

(2) F421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) F422 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) F423 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) F424 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) F425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) F426 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F421 S. 52(2)-(7) repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(2)(3), 333(1)-(4), Sch. 5 Pt. 1; S.S.I. 2005/161, art. 3 (with savings for s. 52(2)-(7) by virtue of S.S.I. 2005/452, art. 33(12))

F422 S. 52(2)-(7) repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(2)(3), 333(1)-(4), Sch. 5 Pt. 1; S.S.I. 2005/161, art. 3 (with savings for s. 52(2)-(7) by virtue of S.S.I. 2005/452, art. 33(12))

F423 S. 52(2)-(7) repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(2)(3), 333(1)-(4), Sch. 5 Pt. 1; S.S.I. 2005/161, art. 3 (with savings for s. 52(2)-(7) by virtue of S.S.I. 2005/452, art. 33(12))

F424 S. 52(2)-(7) repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(2)(3), 333(1)-(4), Sch. 5 Pt. 1; S.S.I. 2005/161, art. 3 (with savings for s. 52(2)-(7) by virtue of S.S.I. 2005/452, art. 33(12))

F425 S. 52(2)-(7) repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(2)(3), 333(1)-(4), Sch. 5 Pt. 1; S.S.I. 2005/161, art. 3 (with savings for s. 52(2)-(7) by virtue of S.S.I. 2005/452, art. 33(12))

F426 S. 52(2)-(7) repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(2)(3), 333(1)-(4), Sch. 5 Pt. 1; S.S.I. 2005/161, art. 3 (with savings for s. 52(2)-(7) by virtue of S.S.I. 2005/452, art. 33(12))

[F427 Remit of mentally disordered persons from district court S

Textual Amendments

F427 Ss. 52A-52U inserted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 130, 333(1)-(4); S.S.I. 2005/161, art. 3 (as amended (27.9.2005) by S.S.I. 2005/465, art. 2, sch. 1 para. 32(13)(a)(i)(ii), sch. 2)

52A Remit of certain mentally disordered persons from district court to sheriff court S

Where—

(a) a person has been charged in a [F428 JP court] with an offence punishable by imprisonment; and

(b) it appears to the court that the person has a mental disorder,

the [F428 JP court] shall remit the person to the sheriff in the manner provided by section 7(9) and (10) of this Act.

Textual Amendments

F428 Words in s. 52A substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 26(e); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

Assessment orders S

52B Prosecutor’s power to apply for assessment order S

(1) Where—

(a) a person has been charged with an offence;

(b) a relevant disposal has not been made in the proceedings in respect of the offence; and

(c) it appears to the prosecutor that the person has a mental disorder,

the prosecutor may apply to the court for an order under section 52D(2) of this Act (in this Act referred to as an “assessment order”) in respect of that person.

(2) Where the prosecutor applies for an assessment order under subsection (1) above, the prosecutor shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application.

(3) Those persons are—

(a) the person in respect of whom the application is made;

(b) any solicitor acting for the person; and

(c) in a case where the person is [F429 remanded] in custody, the Scottish Ministers.

(4) In this section—

• “court” means any court, other than a [F430 JP court], competent to deal with the case; and

• “relevant disposal” means—

  (a)

  the liberation in due course of law of the person charged;

  (b)

  the desertion of summary proceedings pro loco et tempore or simpliciter;

  (c)

  the desertion of solemn proceedings simpliciter;

  (d)

  the acquittal of the person charged; or

  (e)

  the conviction of the person charged.

Textual Amendments

F429 Word in s. 52B(3)(c) inserted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 38(2)(a), 61(2); S.S.I. 2017/197, art. 2, sch.

F430 Words in s. 52B(4) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 26(f); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

52C Scottish Ministers' power to apply for assessment order S

(1) Where—

(a) a person has been charged with an offence;

(b) the person has not been sentenced;

(c) the person is [F431 remanded] in custody; and

(d) it appears to the Scottish Ministers that the person has a mental disorder,

the Scottish Ministers may apply to the court for an assessment order in respect of that person.

(2) Where the Scottish Ministers apply for an order under subsection (1) above, they shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application.

(3) Those persons are—

(a) the person in respect of whom the application is made;

(b) any solicitor acting for the person; and

(c) in a case where a relevant disposal has not been made in the proceedings in respect of the offence with which the person is charged, the prosecutor.

(4) In this section, “court” and “relevant disposal” have the same meanings as in section 52B of this Act.

Textual Amendments

F431 Word in s. 52C(1)(c) inserted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 38(2)(b), 61(2); S.S.I. 2017/197, art. 2, sch.

52D Assessment order S

(1) This section applies where an application for an assessment order is made under section 52B(1) or 52C(1) of this Act.

(2) If the court is satisfied—

(a) on the written or oral evidence of a medical practitioner, as to the matters mentioned in subsection (3) below; and

(b) that, having regard to the matters mentioned in subsection (4) below, it is appropriate,

it may, subject to subsection (5) below, make an assessment order authorising the measures mentioned in subsection (6) below and specifying any matters to be included in the report under section 52G(1) of this Act.

(3) The matters referred to in subsection (2)(a) above are—

(a) that there are reasonable grounds for believing—

(i) that the person in respect of whom the application is made has a mental disorder;

(ii) that it is necessary to detain the person in hospital to assess whether the conditions mentioned in subsection (7) below are met in respect of the person; and

(iii) that if the assessment order were not made there would be a significant risk to the health, safety or welfare of the person or a significant risk to the safety of any other person;

(b) that the hospital proposed by the medical practitioner is suitable for the purpose of assessing whether the conditions mentioned in subsection (7) below are met in respect of the person;

(c) that, if an assessment order were made, the person could be admitted to such hospital before the expiry of the period of 7 days beginning with the day on which the order is made; and

(d) that it would not be reasonably practicable to carry out the assessment mentioned in paragraph (b) above unless an order were made.

(4) The matters referred to in subsection (2)(b) above are—

(a) all the circumstances (including the nature of the offence with which the person in respect of whom the application is made is charged or, as the case may be, of which the person was convicted); and

(b) any alternative means of dealing with the person.

(5) The court may make an assessment order only if the person in respect of whom the application is made has not been sentenced.

(6) The measures are—

(a) in the case of a person who, when the assessment order is made, has not been admitted to the specified hospital, the removal, before the [F432 end of the day following the] 7 days beginning with the day on which the order is made, of the person to the specified hospital by—

(i) a constable;

(ii) a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or

(iii) a specified person;

(b) the detention, for the [F433 relevant period given by subsection (6A) below], of the person in the specified hospital; and

(c) during the [F433 relevant period given by subsection (6A) below], the giving to the person, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), of medical treatment.

[F434 (6A) For the purpose of subsection (6)(b) and (c) above, the relevant period is the period—

(a) beginning with the day on which the order is made,

(b) expiring at the end of the 28 days following that day.]

(7) The conditions referred to in paragraphs (a)(ii) and (b) of subsection (3) above are—

(a) that the person in respect of whom the application is made has a mental disorder;

(b) that medical treatment which would be likely to—

(i) prevent the mental disorder worsening; or

(ii) alleviate any of the symptoms, or effects, of the disorder,

is available for the person; and

(c) that if the person were not provided with such medical treatment there would be a significant risk—

(i) to the health, safety or welfare of the person; or

(ii) to the safety of any other person.

(8) The court may make an assessment order in the absence of the person in respect of whom the application is made only if—

(a) the person is represented by counsel or a solicitor;

(b) that counsel or solicitor is given an opportunity of being heard; and

(c) the court is satisfied that it is—

(i) impracticable; or

(ii) inappropriate,

for the person to be brought before it.

(9) An assessment order may include such directions as the court thinks fit for the removal of the person subject to the order to, and detention of the person in, a place of safety pending the person’s admission to the specified hospital.

(10) The court shall, as soon as reasonably practicable after making an assessment order, give notice of the making of the order to—

(a) the person subject to the order;

(b) any solicitor acting for the person;

(c) in a case where—

(i) the person has been charged with an offence; and

(ii) a relevant disposal has not been made in the proceedings in respect of the offence,

the prosecutor;

(d) in a case where the person, immediately before the order was made, was [F435 remanded] in custody, the Scottish Ministers; and

(e) the Mental Welfare Commission.

(11) In this section—

• “court” has the same meaning as in section 52B of this Act;

• “medical treatment” has the meaning given by section 329(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);

• “relevant disposal” has the same meaning as in section 52B of this Act; and

• “specified” means specified in the assessment order.

Textual Amendments

F432 Words in s. 52D(6)(a) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 40(2)(a)(i), 61(2); S.S.I. 2017/197, art. 2, sch.

F433 Words in s. 52D(6)(b)(c) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 40(2)(a)(ii), 61(2); S.S.I. 2017/197, art. 2, sch.

F434 S. 52D(6A) inserted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 40(2)(b), 61(2); S.S.I. 2017/197, art. 2, sch.

F435 Word in s. 52D(10)(d) inserted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 38(2)(c), 61(2); S.S.I. 2017/197, art. 2, sch.

52E Assessment order made ex proprio motu: application of section 52D S

(1) Where—

(a) a person has been charged with an offence;

(b) the person has not been sentenced; and

(c) it appears to the court that the person has a mental disorder,

the court may, subject to subsections (2) and (3) below, make an assessment order in respect of that person.

(2) The court may make an assessment order under subsection (1) above only if it would make one under subsections (2) to (11) of section 52D of this Act; and those subsections shall apply for the purposes of subsection (1) above as they apply for the purposes of subsection (1) of that section, references in those subsections to the person in respect of whom the application is made being construed as references to the person in respect of whom it is proposed to make an assessment order.

(3) An assessment order made under subsection (1) above shall, for the purposes of this Act and the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), be treated as if made under section 52D(2) of this Act.

(4) In this section, “court” has the same meaning as in section 52B of this Act.

52F Assessment order: supplementary S

(1) If, before the [F436 end of the day following the] 7 days beginning with the day on which an assessment order is made—

(a) in the case of a person who, immediately before the order was made, was [F437 remanded] in custody, it appears to the Scottish Ministers; or

(b) in any other case, it appears to the court,

that, by reason of emergency or other special circumstances, it is not reasonably practicable for the person to be admitted to the hospital specified in the order, the Scottish Ministers, or, as the case may be, the court, may direct that the person be admitted to the hospital specified in the direction.

(2) Where the court makes a direction under subsection (1) above, it shall, as soon as reasonably practicable after making the direction, inform the person having custody of the person subject to the assessment order of the making of the direction.

(3) Where the Scottish Ministers make a direction under subsection (1) above, they shall, as soon as reasonably practicable after making the direction, inform—

(a) the court;

(b) the person having custody of the person subject to the assessment order; and

(c) in a case where—

(i) the person has been charged with an offence; and

(ii) a relevant disposal has not been made in the proceedings in respect of the offence,

the prosecutor,

of the making of the direction.

(4) Where a direction is made under subsection (1) above, the assessment order shall have effect as if the hospital specified in the direction were the hospital specified in the order.

(5) In this section—

• “court” means the court which made the assessment order; and

• “relevant disposal” has the same meaning as in section 52B of this Act.

Textual Amendments

F436 Words in s. 52F(1) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 40(3), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 19(a))

F437 Word in s. 52F(1)(a) inserted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 38(2)(d), 61(2); S.S.I. 2017/197, art. 2, sch.

52G Review of assessment order S

(1) The responsible medical officer shall, before the [F438 end of the day following the] 28 days beginning with the day on which the assessment order is made, submit a report in writing to the court—

(a) as to whether the conditions mentioned in section 52D(7) of this Act are met in respect of the person subject to the order; and

(b) as to any matters specified by the court under section 52D(2) of this Act.

(2) The responsible medical officer shall, at the same time as such officer submits the report to the court, send a copy of such report—

(a) to the person in respect of whom the report is made;

(b) to any solicitor acting for the person;

(c) in a case where—

(i) the person has been charged with an offence; and

(ii) a relevant disposal has not been made in the proceedings in respect of the offence,

to the prosecutor; and

(d) to the Scottish Ministers.

(3) Subject to subsection (4) below, the court shall, on receiving a report submitted under subsection (1) above, revoke the assessment order and—

(a) subject to subsections (7) and (8) below, make a treatment order; or

(b) commit the person to prison or such other institution to which the person might have been committed had the assessment order not been made or otherwise deal with the person as the court considers appropriate.

(4) If, on receiving a report submitted under subsection (1) above, the court is satisfied that further time is necessary to assess whether the conditions mentioned in section 52D(7) of this Act are met in respect of the person subject to the assessment order, it may, on one occasion only, make an order extending the assessment order for a period not exceeding [F439 the relevant period given by subsection (4A) below].

[F440 (4A) For the purpose of subsection (4) above, the relevant period is the period—

(a) beginning with the day on which the order would otherwise cease to authorise the detention of the person in hospital,

(b) expiring at the end of the 14 days following that day.]

(5) The court may, under subsection (4) above, extend an assessment order in the absence of the person subject to the order only if—

(a) the person is represented by counsel or a solicitor;

(b) that counsel or solicitor is given an opportunity of being heard; and

(c) the court is satisfied that it is—

(i) impracticable; or

(ii) inappropriate,

for the person to be brought before it.

(6) Where the court makes an order under subsection (4) above, it shall, as soon as reasonably practicable after making the order, give notice of the making of the order to—

(a) the persons mentioned in paragraphs (a) and (b) of subsection (2) above;

(b) in a case where—

(i) the person has been charged with an offence; and

(ii) a relevant disposal has not been made in the proceedings in respect of the offence,

the prosecutor;

(c) the Scottish Ministers; and

(d) the person’s responsible medical officer.

(7) The court shall make a treatment order under subsection (3)(a) above only if it would make one under subsections (2) to (10) of section 52M of this Act; and those subsections shall apply for the purposes of subsection (3)(a) above as they apply for the purposes of that section, references in those subsections to the person in respect of whom the application is made being construed as references to the person in respect of whom it is proposed to make a treatment order.

(8) A treatment order made under subsection (3)(a) above shall, for the purposes of this Act and the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), be treated as if made under section 52M(2) of this Act.

(9) The responsible medical officer shall, where that officer is satisfied that there has been a change of circumstances since the assessment order was made which justifies the variation of the order, submit a report to the court in writing.

(10) Where a report is submitted under subsection (9) above, the court shall—

(a) if satisfied that the person need not be subject to an assessment order, revoke the order and take any action mentioned in subsection (3)(b) above; or

(b) if not so satisfied—

(i) confirm the order;

(ii) vary the order; or

(iii) revoke the order and take any action mentioned in subsection (3)(b) above.

(11) Sections 52D, 52F, 52H and 52J of this Act and subsections (1) to (3) above apply to the variation of an order under subsection (10)(b)(ii) above as they apply to an assessment order.

(12) In this section—

• “court” means the court which made the assessment order;

• “relevant disposal” has the same meaning as in section 52B of this Act; and

• “responsible medical officer” means the person’s responsible medical officer appointed under section 230 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

Textual Amendments

F438 Words in s. 52G(1) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 40(4)(a), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 19(b))

F439 Words in s. 52G(4) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 40(4)(b), 61(2); S.S.I. 2017/197, art. 2, sch.

F440 S. 52G(4A) inserted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 40(4)(c), 61(2); S.S.I. 2017/197, art. 2, sch.

52H Early termination of assessment order S

(1) This section applies where—

(a) in the case of a person who, when the assessment order is made, has not been removed to the hospital specified in the order, the [F441 relevant period given by subsection (1A) below] has not expired;

(b) in the case of a person—

(i) who, when the assessment order is made, has been admitted to the hospital specified in the order; or

(ii) who has been removed under paragraph (a) of subsection (6) of section 52D of this Act to the hospital so specified,

the [F442 relevant period given by subsection (1A) below] has not expired; or

(c) in the case of a person in respect of whom the court has made an order under section 52G(4) of this Act extending the assessment order for a period, the period for which the order was extended has not expired.

[F443 (1A) For the purpose of subsection (1)(a) and (b) above, the relevant period is the period—

(a) beginning with the day on which the order is made,

(b) expiring—

(i) as regards subsection (1)(a) above, at the end of the 7 days following the day mentioned in paragraph (a) of this subsection,

(ii) as regards subsection (1)(b) above, at the end of the 28 days following the day mentioned in paragraph (a) of this subsection.]

(2) An assessment order shall cease to have effect on the occurrence of any of the following events—

(a) the making of a treatment order in respect of the person subject to the assessment order;

(b) in a case where—

(i) the person subject to the assessment order has been charged with an offence; and

(ii) a relevant disposal had not been made in the proceedings in respect of that offence when the order was made,

the making of a relevant disposal in such proceedings;

(c) in a case where the person subject to the assessment order has been convicted of an offence but has not been sentenced—

(i) the deferral of sentence by the court under section 202(1) of this Act;

(ii) the making of one of the orders mentioned in subsection (3) below or

(iii) the imposition of any sentence.

(3) The orders are—

(a) an interim compulsion order;

(b) a compulsion order;

(c) a guardianship order;

(d) a hospital direction;

(e) any order under section 57 of this Act; F444 . . .

(f) F445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In this section, “relevant disposal” has the same meaning as in section 52B of this Act.

Textual Amendments

F441 Words in s. 52H(1)(a) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 40(5)(a)(i), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 19(c))

F442 Words in s. 52H(1)(b) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 40(5)(a)(ii), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 19(c))

F443 S. 52H(1A) inserted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 40(5)(b), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 19(c))

F444 Word in s. 52H(3) repealed (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 2(a); S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F445 S. 52H(3)(f) repealed (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 2(b); S.S.I. 2010/413, art. 2, Sch. (with art. 3)

52J Power of court on assessment order ceasing to have effect S

(1) Where, otherwise than by virtue of section 52G(3) or (10) or 52H(2) of this Act, an assessment order ceases to have effect the court shall commit the person who was subject to the order to prison or such other institution to which the person might have been committed had the order not been made or otherwise deal with the person as the court considers appropriate.

(2) In this section, “court” has the same meaning as in section 52B of this Act.

Treatment orders S

52K Prosecutor’s power to apply for treatment order S

(1) Where—

(a) a person has been charged with an offence;

(b) a relevant disposal has not been made in the proceedings in respect of the offence; and

(c) it appears to the prosecutor that the person has a mental disorder,

the prosecutor may apply to the court for an order under section 52M of this Act (in this Act referred to as a “treatment order”) in respect of that person.

(2) Where the prosecutor applies for a treatment order under subsection (1) above, the prosecutor shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application.

(3) Those persons are—

(a) the person in respect of whom the application is made;

(b) any solicitor acting for the person; and

(c) in a case where the person is [F446 remanded] in custody, the Scottish Ministers.

(4) In this section, “court” and “relevant disposal” have the same meanings as in section 52B of this Act.

Textual Amendments

F446 Word in s. 52K(3)(c) inserted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 38(2)(e), 61(2); S.S.I. 2017/197, art. 2, sch.

52L Scottish Ministers' power to apply for treatment order S

(1) Where—

(a) a person has been charged with an offence;

(b) the person has not been sentenced;

(c) the person is [F447 remanded] in custody; and

(d) it appears to the Scottish Ministers that the person has a mental disorder,

the Scottish Ministers may apply to the court for a treatment order in respect of that person.

(2) Where the Scottish Ministers apply for an order under subsection (1) above, they shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application.

(3) Those persons are—

(a) the person in respect of whom the application is made;

(b) any solicitor acting for the person; and

(c) in a case where a relevant disposal has not been made in the proceedings in respect of the offence with which the person is charged, the prosecutor.

(4) In this section, “court” and “relevant disposal” have the same meanings as in section 52B of this Act.

Textual Amendments

F447 Word in s. 52L(1)(c) inserted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 38(2)(f), 61(2); S.S.I. 2017/197, art. 2, sch.

52M Treatment order S

(1) This section applies where an application for a treatment order is made under section 52K(1) or 52L(1) of this Act.

(2) If the court is satisfied—

(a) on the written or oral evidence of two medical practitioners, as to the matters mentioned in subsection (3) below; and

(b) that, having regard to the matters mentioned in subsection (4) below, it is appropriate,

it may, subject to subsection (5) below, make a treatment order authorising the measures mentioned in subsection (6) below.

(3) The matters referred to in subsection (2)(a) above are—

(a) that the conditions mentioned in subsection (7) of section 52D of this Act are met in relation to the person in respect of whom the application is made;

(b) that the hospital proposed by the approved medical practitioner and the medical practitioner is suitable for the purpose of giving medical treatment to the person; and

(c) that, if a treatment order were made, such person could be admitted to such hospital before the [F448 end of the day following the] 7 days beginning with the day on which the order is made.

(4) The matters referred to in subsection (2)(b) above are—

(a) all the circumstances (including the nature of the offence with which the person in respect of whom the application is made is charged or, as the case may be, of which the person was convicted); and

(b) any alternative means of dealing with the person.

(5) The court may make a treatment order only if the person in respect of whom the application is made has not been sentenced.

(6) The measures are—

(a) in the case of a person who, when the treatment order is made, has not been admitted to the specified hospital, the removal, before the [F449 end of the day following the] 7 days beginning with the day on which the order is made, of the person to the specified hospital by—

(i) a constable;

(ii) a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or

(iii) a specified person;

(b) the detention of the person in the specified hospital; and

(c) the giving to the person, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), of medical treatment.

(7) The court may make a treatment order in the absence of the person in respect of whom the application is made only if—

(a) the person is represented by counsel or solicitor;

(b) that counsel or solicitor is given an opportunity of being heard; and

(c) the court is satisfied that it is—

(i) impracticable; or

(ii) inappropriate,

for the person to be brought before it.

(8) A treatment order may include such directions as the court thinks fit for the removal of the person subject to the order to, and detention of the person in, a place of safety pending the person’s admission to the specified hospital.

(9) The court shall, as soon as reasonably practicable after making a treatment order, give notice of the making of the order to—

(a) the person subject to the order;

(b) any solicitor acting for the person;

(c) in a case where—

(i) the person has been charged with an offence; and

(ii) a relevant disposal has not been made in the proceedings in respect of the offence,

the prosecutor;

(d) in a case where the person, immediately before the order was made—

(i) was [F450 remanded] in custody ; or

(ii) was subject to an assessment order and, immediately before that order was made, was [F450 remanded] in custody,

the Scottish Ministers; and

(e) the Mental Welfare Commission.

(10) In this section—

• “court” has the same meaning as in section 52B of this Act;

• “medical treatment” has the same meaning as in section 52D of this Act; and

• “specified” means specified in the treatment order.

Textual Amendments

F448 Words in s. 52M(3)(c) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 41(2)(a), 61(2); S.S.I. 2017/197, art. 2, sch.

F449 Words in s. 52M(6)(a) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 41(2)(b), 61(2); S.S.I. 2017/197, art. 2, sch.

F450 Word in s. 52M(9)(d)(i)(ii) inserted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 38(2)(g), 61(2); S.S.I. 2017/197, art. 2, sch.

52N Treatment order made ex proprio motu: application of section 52M S

(1) Where—

(a) a person has been charged with an offence;

(b) the person has not been sentenced; and

(c) it appears to the court that the person has a mental disorder,

the court may, subject to subsections (2) and (3) below, make a treatment order in respect of that person.

(2) The court may make a treatment order under subsection (1) above only if it would make one under subsections (2) to (10) of section 52M of this Act; and those subsections shall apply for the purposes of subsection (1) above as they apply for the purposes of subsection (1) of that section, references in those subsections to the person in respect of whom the application is made being construed as references to the person in respect of whom it is proposed to make a treatment order.

(3) A treatment order made under subsection (1) above shall, for the purposes of this Act and the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), be treated as if made under section 52M(2) of this Act.

(4) In this section, “court” has the same meaning as in section 52B of this Act.

52P Treatment order: supplementary S

(1) If, before the [F451 end of the day following the] 7 days beginning with the day on which the treatment order is made—

(a) in the case of a person to whom subsection (2) below applies, it appears to the Scottish Ministers; or

(b) in any other case, it appears to the court,

that, by reason of emergency or other special circumstances, it is not reasonably practicable for the person to be admitted to the hospital specified in the order, the Scottish Ministers, or, as the case may be, the court, may direct that the person be admitted to the hospital specified in the direction.

(2) This subsection applies to—

(a) a person who is [F452 remanded] in custody immediately before the treatment order is made; or

(b) a person—

(i) who was subject to an assessment order immediately before the treatment order is made; and

(ii) who was [F453 remanded] in custody immediately before that assessment order was made.

(3) Where the court makes a direction under subsection (1) above, it shall, as soon as reasonably practicable after making the direction, inform the person having custody of the person subject to the treatment order of the making of the direction.

(4) Where the Scottish Ministers make a direction under subsection (1) above, they shall, as soon as reasonably practicable after making the direction, inform—

(a) the court;

(b) the person having custody of the person subject to the treatment order; and

(c) in a case where—

(i) the person has been charged with an offence; and

(ii) a relevant disposal has not been made in the proceedings in respect of the offence,

the prosecutor,

of the making of the direction.

(5) Where a direction is made under subsection (1) above, the treatment order shall have effect as if the hospital specified in the direction were the hospital specified in the order.

(6) In this section—

• “court” means the court which made the treatment order; and

• “relevant disposal” has the same meaning as in section 52B of this Act.

Textual Amendments

F451 Words in s. 52P(1) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 41(3), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 20(a))

F452 Word in s. 52P(2)(a) inserted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 38(2)(h), 61(2); S.S.I. 2017/197, art. 2, sch.

F453 Word in s. 52P(2)(b)(ii) inserted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 38(2)(h), 61(2); S.S.I. 2017/197, art. 2, sch.

52Q Review of treatment order S

(1) The responsible medical officer shall, where that officer is satisfied—

(a) that any of the conditions mentioned in section 52D(7) of this Act are no longer met in respect of the person subject to the treatment order; or

(b) that there has otherwise been a change of circumstances since the order was made which makes the continued detention of the person in hospital by virtue of the order no longer appropriate,

submit a report in writing to the court.

(2) Where a report is submitted under subsection (1) above, the court shall—

(a) if satisfied that the person need not be subject to the treatment order—

(i) revoke the order; and

(ii) commit the person to prison or such other institution to which the person might have been committed had the order not been made or otherwise deal with the person as the court considers appropriate; or

(b) if not so satisfied—

(i) confirm the order;

(ii) vary the order; or

(iii) revoke the order and take any action mentioned in paragraph (a)(ii) above.

(3) Sections 52M, 52P, this section and sections 52R and 52S of this Act apply to the variation of a treatment order under subsection (2)(b)(ii) above as they apply to a treatment order.

(4) In this section—

• “court” means the court which made the treatment order; and

• “responsible medical officer” means the person’s responsible medical officer appointed under section 230 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

52R Termination of treatment order S

(1) This section applies—

(a) where, in the case of a person who, when the treatment order is made, has not been removed to the hospital specified in the order, the [F454 relevant period given by subsection (1A) below] has not expired; or

(b) in the case of a person—

(i) who, when the treatment order is made, has been admitted to the hospital specified in the order; or

(ii) who has been removed under paragraph (a) of subsection (6) of section 52M of this Act to the hospital so specified.

[F455 (1A) For the purpose of subsection (1)(a) above, the relevant period is the period—

(a) beginning with the day on which the order is made,

(b) expiring at the end of the 7 days following that day.]

(2) A treatment order shall cease to have effect on the occurrence of any of the following events—

(a) in a case where—

(i) the person subject to the treatment order has been charged with an offence; and

(ii) a relevant disposal had not been made in the proceedings in respect of such offence when the order was made,

the making of a relevant disposal in such proceedings;

(b) in a case where the person subject to the treatment order has been convicted of an offence but has not been sentenced—

(i) the deferral of sentence by the court under section 202(1) of this Act;

(ii) the making of one of the orders mentioned in subsection (3) below; or

(iii) the imposition of any sentence.

(3) The orders are—

(a) an interim compulsion order;

(b) a compulsion order;

(c) a guardianship order;

(d) a hospital direction;

(e) any order under section 57 of this Act; F456 . . .

(f) F457 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In this section, “relevant disposal” has the same meaning as in section 52B of this Act.

Textual Amendments

F454 Words in s. 52R(1)(a) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 41(4)(a), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 20(b))

F455 S. 52R(1A) inserted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 41(4)(b), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 20(b))

F456 Word in s. 52R(3) repealed (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 3(a); S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F457 S. 52R(3)(f) repealed (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 3(b); S.S.I. 2010/413, art. 2, Sch. (with art. 3)

52S Power of court on treatment order ceasing to have effect S

(1) Where, otherwise than by virtue of section 52Q(2) or 52R(2) of this Act, a treatment order ceases to have effect the court shall commit the person who was subject to the order to prison or such other institution to which the person might have been committed had the order not been made or otherwise deal with the person as the court considers appropriate.

(2) In this section, “court” has the same meaning as in section 52B of this Act.

Prevention of delay in trials S

52T Prevention of delay in trials: assessment orders and treatment orders S

(1) Subsections (4) to (9) of section 65 of this Act shall apply in the case of a person committed for an offence until liberated in due course of law who is detained in hospital by virtue of an assessment order or a treatment order as those subsections apply in the case of an accused who is—

(a) committed for an offence until liberated in due course of law; and

(b) detained by virtue of that committal.

(2) Section 147 of this Act shall apply in the case of a person charged with an offence in summary proceedings who is detained in hospital by virtue of an assessment order or a treatment order as it applies in the case of an accused who is detained in respect of that offence.

(3) Any period during which, under—

(a) section 221 (as read with sections 222 and 223) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13); or

(b) section 224 (as read with sections 225 and 226) of that Act,

a patient’s detention is not authorised shall be taken into account for the purposes of the calculation of any of the periods mentioned in subsection (4) below.

(4) Those periods are—

(a) [F458 any period] referred to in subsection (4) of section 65 of this Act as applied by subsection (1) above;

(b) those F459 ... periods as extended under subsection (5) or, on appeal, under subsection (8) of that section as so applied;

(c) the [F460 period] referred to in [F461 subsection (1) of] section 147 of this Act (prevention of delay in trials in summary proceedings) as applied by subsection (2) above; and

(d) that period as extended under subsection (2) of that section or, on appeal, under subsection (3) of that section as so applied.

Textual Amendments

F458 Words in s. 52T(4)(a) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(2)(a), 59(1)

F459 Word in s. 52T(4)(b) repealed (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(2)(b), 59(1)

F460 Word in s. 52T(4)(c) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(2)(c)(i), 59(1)

F461 Words in s. 52T(4)(c) inserted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(2)(c)(ii), 59(1)

Effect of assessment and treatment orders on pre-existing mental health orders S

52U Effect of assessment order and treatment order on pre-existing mental health order S

(1) This section applies where—

(a) a patient is subject to a relevant order; and

(b) an assessment order or a treatment order is made in respect of the patient.

(2) The relevant order shall cease to authorise the measures specified in it for the period during which the patient is subject to the assessment order or, as the case may be, treatment order.

(4) In this section, a “relevant order” means—

(a) an interim compulsory treatment order made under section 65(2) of the 2003 Act; and

(b) a compulsory treatment order made under section 64(4)(a) of that Act.]

[F462 Interim compulsion orders] S

Textual Amendments

F462 Ss. 53-53D and cross-heading substituted (5.10.2005) for s. 53 and cross-heading by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 131, 333(1)-(4); S.S.I. 2005/161, art. 3 (with savings for s. 53 by virtue of S.S.I. 2005/452, art. 33(14))

[F463 53 Interim compulsion order. S

(1) This section applies where a person (referred to in this section and in sections 53A to 53D of this Act as an “offender”)—

(a) is convicted in the High Court or the sheriff court of an offence punishable by imprisonment (other than an offence the sentence for which is fixed by law); or

(b) is remitted to the High Court by the sheriff under any enactment for sentence for such an offence.

(2) If the court is satisfied—

(a) on the written or oral evidence of two medical practitioners—

(i) that the offender has a mental disorder; and

(ii) as to the matters mentioned in subsection (3) below; and

(b) that, having regard to the matters mentioned in subsection (4) below, it is appropriate,

it may, subject to subsection (7) below, make an order (in this Act referred to as an “interim compulsion order”) authorising the measures mentioned in subsection (8) below and specifying any matters to be included in the report under section 53B(1) of this Act.

(3) The matters referred to in subsection (2)(a)(ii) above are—

(a) that there are reasonable grounds for believing—

(i) that the conditions mentioned in subsection (5) below are likely to be met in respect of the offender; and

(ii) that the offender’s mental disorder is such that it would be appropriate to make one of the disposals mentioned in subsection (6) below in relation to the offender;

(b) that the hospital to be specified in the order is suitable for the purpose of assessing whether the conditions mentioned in subsection (5) below are met in respect of the offender;

(c) that, were an interim compulsion order made, the offender could be admitted to such hospital before the [F464 end of the day following the] 7 days beginning with the day on which the order is made; and

(d) that it would not be reasonably practicable for the assessment mentioned in paragraph (b) above to be made unless an order were made.

(4) The matters referred to in subsection (2)(b) above are—

(a) all the circumstances (including the nature of the offence of which the offender is convicted); and

(b) any alternative means of dealing with the offender.

(5) The conditions referred to in paragraphs (a)(i) and (b) of subsection (3) above are—

(a) that medical treatment which would be likely to—

(i) prevent the mental disorder worsening; or

(ii) alleviate any of the symptoms, or effects, of the disorder,

is available for the offender;

(b) that if the offender were not provided with such medical treatment there would be a significant risk—

(i) to the health, safety or welfare of the offender; or

(ii) to the safety of any other person; and

(c) that the making of an interim compulsion order in respect of the offender is necessary.

(6) The disposals are—

(a) both a compulsion order that authorises detention in hospital by virtue of section 57A(8)(a) of this Act and a restriction order; or

(b) a hospital direction.

(7) An interim compulsion order may authorise detention in a state hospital only if, on the written or oral evidence of the two medical practitioners mentioned in subsection (2)(a) above, it appears to the court—

(a) that the offender requires to be detained in hospital under conditions of special security; and

(b) that such conditions of special security can be provided only in a state hospital.

(8) The measures are—

(a) in the case of an offender who, when the interim compulsion order is made, has not been admitted to the specified hospital, the removal, before the [F465 end of the day following the] 7 days beginning with the day on which the order is made, of the offender to the specified hospital by—

(i) a constable;

(ii) a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or

(iii) a specified person;

(b) the detention, for a period not exceeding [F466 the relevant period given by subsection (8A) below], of the offender in the specified hospital; and

(c) during the [F467 relevant period given by subsection (8A) below], the giving to the offender, in accordance with Part 16 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13), of medical treatment.

[F468 (8A) For the purpose of subsection (8)(b) and (c) above, the relevant period is the period—

(a) beginning with the day on which the order is made,

(b) expiring at the end of the 12 weeks following that day.]

(9) An interim compulsion order may include such directions as the court thinks fit for the removal of the offender to, and the detention of the offender in, a place of safety pending the offender’s admission to the specified hospital.

(10) The court may make an interim compulsion order in the absence of the offender only if—

(a) the offender is represented by counsel or solicitor;

(b) that counsel or solicitor is given an opportunity of being heard; and

(c) the court is satisfied that it is—

(i) impracticable; or

(ii) inappropriate,

for the offender to be brought before it.

(11) The court shall, as soon as reasonably practicable after making an interim compulsion order, give notice of the making of the order to—

(a) the person subject to the order;

(b) any solicitor acting for that person;

(c) the Scottish Ministers; and

(d) the Mental Welfare Commission.

(12) Where a court makes an interim compulsion order in relation to an offender, the court—

(a) shall not, at the same time—

(i) make an order under section 200 of this Act;

(ii) impose a fine;

(iii) pass sentence of imprisonment;

(iv) make a compulsion order;

(v) make a guardianship order;

[F469 (vi) impose a community payback order;

(vii) make a drug treatment and testing order; or

(viii) make a restriction of liberty order,]

in relation of the offender;

(b) may make any other order which it has power to make apart from this section.

(13) In this section—

• “medical treatment” has the same meaning as in section 52D of this Act;

• “sentence of imprisonment” includes any sentence or order for detention; and

• “specified” means specified in the interim compulsion order.]

Textual Amendments

F463 Ss. 53-53D and cross-heading substituted (5.10.2005) for s. 53 and cross-heading by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 131, 333(1)-(4); S.S.I. 2005/161, art. 3 (with savings for s. 53 by virtue of S.S.I. 2005/452, art. 33(14))

F464 Words in s. 53(3)(c) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 42(2)(a), 61(2); S.S.I. 2017/197, art. 2, sch.

F465 Words in s. 53(8)(a) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 42(2)(b)(i), 61(2); S.S.I. 2017/197, art. 2, sch.

F466 Words in s. 53(8)(b) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 42(2)(b)(ii), 61(2); S.S.I. 2017/197, art. 2, sch.

F467 Words in s. 53(8)(c) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 42(2)(b)(iii), 61(2); S.S.I. 2017/197, art. 2, sch.

F468 S. 53(8A) inserted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 42(2)(c), 61(2); S.S.I. 2017/197, art. 2, sch.

F469 S. 53(12)(a)(vi)-(viii) substituted for s. 53(12)(a)(vi)(vii) (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 4; S.S.I. 2010/413, art. 2, Sch. (with art. 3)

[F470 53A Interim compulsion order: supplementary S

(1) If, before the [F471 end of the day following the] 7 days beginning with the day on which the interim compulsion order is made, it appears to the court, or, as the case may be, the Scottish Ministers, that, by reason of emergency or other special circumstances, it is not reasonably practicable for the offender to be admitted to the hospital specified in the order, the court, or, as the case may be, the Scottish Ministers, may direct that the offender be admitted to the hospital specified in the direction.

(2) Where—

(a) the court makes a direction under subsection (1) above, it shall, as soon as reasonably practicable after making the direction, inform the person having custody of the offender; and

(b) the Scottish Ministers make such a direction, they shall, as soon as reasonably practicable after making the direction, inform—

(i) the court; and

(ii) the person having custody of the offender.

(3) Where a direction is made under subsection (1) above, the interim compulsion order shall have effect as if the hospital specified in the direction were the hospital specified in the order.

(4) In this section, “court” means the court which made the interim compulsion order.]

Textual Amendments

F470 Ss. 53-53D and cross-heading substituted (5.10.2005) for s. 53 and cross-heading by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 131, 333(1)-(4); S.S.I. 2005/161, art. 3 (with savings for s. 53 by virtue of S.S.I. 2005/452, art. 33(14))

F471 Words in s. 53A(1) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 42(3), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 21(a))

[F472 53B Review and extension of interim compulsion order S

(1) The responsible medical officer shall, before the expiry of the period specified by the court under section 53(8)(b) of this Act, submit a report in writing to the court—

(a) as to the matters mentioned in subsection (2) below; and

(b) as to any matters specified by the court under section 53(2) of this Act.

(2) The matters are—

(a) whether the conditions mentioned in section 53(5) of this Act are met in respect of the offender;

(b) the type (or types) of mental disorder that the offender has; and

(c) whether it is necessary to extend the interim compulsion order to allow further time for the assessment mentioned in section 53(3)(b) of this Act.

(3) The responsible medical officer shall, at the same time as such officer submits the report to the court, send a copy of such report to—

(a) the offender; and

(b) any solicitor acting for the offender.

(4) The court may, on receiving the report submitted under subsection (1) above,

[F473 (a) if satisfied that the extension of the order is necessary, extend the order for such period [F474 not exceeding the relevant period given by subsection (4A) below] as the court may specify][F475 , and

(b) if it seems appropriate to do so, direct that the offender be admitted to the hospital specified in the direction.]

[F476 (4A) For the purpose of subsection (4) above, the relevant period is the period—

(a) beginning with the day on which the order would cease to have effect if it were not extended,

(b) expiring at the end of the 12 weeks following that day.]

(5) The court may extend an interim compulsion order under subsection (4) above for a period only if, by doing so, the total period for which the offender will be subject to the order does not exceed [F477 the period—

(a) beginning with the day on which the order was first made,

(b) expiring at the end of the 12 months following that day.]

(6) The court may, under subsection (4) above, extend an interim compulsion order [F478 or make a direction specifying a hospital] in the absence of the offender only if—

(a) the offender is represented by counsel or a solicitor;

(b) that counsel or solicitor is given an opportunity of being heard; and

(c) the court is satisfied that it is—

(i) impracticable; or

(ii) inappropriate,

for the offender to be brought before it.

(7) Subsections (1) to (9) of this section shall apply for the purposes of an interim compulsion order extended under subsection (4) above as they apply for the purposes of an interim compulsion order, references in those subsections to the period specified by the court under section 53(8)(b) of this Act being construed as references to the period specified by the court under subsection (4) above.

[F479 (7A) Where a direction is made under subsection (4) above, the interim compulsion order has effect as if the hospital specified in the direction were the hospital specified in the order.]

(8) Where a report is submitted under subsection (1) above, the court may, before the expiry of the period specified by the court under section 53(8)(b) of this Act—

(a) revoke the interim compulsion order and make one of the disposals mentioned in section 53(6) of this Act; or

(b) revoke the interim compulsion order and deal with the offender in any way (other than by making an interim compulsion order) in which the court could have dealt with the offender if no such order had been made.

(9) In this section—

• “court” means the court which made the interim compulsion order; and

• “responsible medical officer” means the responsible medical officer appointed in respect of the offender under section 230 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13).]

Textual Amendments

F472 Ss. 53-53D and cross-heading substituted (5.10.2005) for s. 53 and cross-heading by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 131, 333(1)-(4); S.S.I. 2005/161, art. 3 (with savings for s. 53 by virtue of S.S.I. 2005/452, art. 33(14))

F473 Words in s. 53B(4) renumbered as s. 53B(4)(a) (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 45(2)(a)(i), 61(2); S.S.I. 2017/197, art. 2, sch.

F474 Words in s. 53B(4) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 42(4)(a), 61(2); S.S.I. 2017/197, art. 2, sch.

F475 S. 53B(4)(b) and word inserted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 45(2)(a)(ii), 61(2); S.S.I. 2017/197, art. 2, sch.

F476 S. 53B(4A) inserted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 42(4)(b), 61(2); S.S.I. 2017/197, art. 2, sch.

F477 Words in s. 53B(5) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 42(4)(c), 61(2); S.S.I. 2017/197, art. 2, sch.

F478 Words in s. 53B(6) inserted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 45(2)(b), 61(2); S.S.I. 2017/197, art. 2, sch.

F479 S. 53B(7A) inserted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 45(2)(c), 61(2); S.S.I. 2017/197, art. 2, sch.

[F480 53C Early termination of interim compulsion order S

(1) An interim compulsion order shall cease to have effect if the court—

(a) makes a compulsion order in relation to the offender;

(b) makes a hospital direction in relation to the offender; or

(c) deals with the offender in some other way, including the imposing of a sentence of imprisonment on the offender.

(2) In this section, “court” means the court which made the interim compulsion order.]

Textual Amendments

F480 Ss. 53-53D and cross-heading substituted (5.10.2005) for s. 53 and cross-heading by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 131, 333(1)-(4); S.S.I. 2005/161, art. 3 (with savings for s. 53 by virtue of S.S.I. 2005/452, art. 33(14))

[F481 53D Power of court on interim compulsion order ceasing to have effect S

(1) Where, otherwise than by virtue of section 53B(8) or 53C of this Act, an interim compulsion order ceases to have effect the court may deal with the offender who was subject to the order in any way (other than the making of a new interim compulsion order) in which it could have dealt with the offender if no such order had been made.

(2) In this section, “court” means the court which made the interim compulsion order.]

Textual Amendments

F481 Ss. 53-53D and cross-heading substituted (5.10.2005) for s. 53 and cross-heading by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 131, 333(1)-(4); S.S.I. 2005/161, art. 3 (with savings for s. 53 by virtue of S.S.I. 2005/452, art. 33(14))

[F482 Acquittal involving mental disorder S

Textual Amendments

F482 S. 53E and cross-heading inserted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 169, 206(1); S.S.I. 2012/160, art. 3, sch.

53E Acquittal involving mental disorder S

(1) Where the prosecutor accepts a plea (by the person charged with the commission of an offence) of the special defence set out in section 51A of this Act, the court must declare that the person is acquitted by reason of the special defence.

(2) Subsection (3) below applies where—

(a) the prosecutor does not accept such a plea, and

(b) evidence tending to establish the special defence set out in section 51A of this Act is brought before the court.

(3) Where this subsection applies the court is to—

(a) in proceedings on indictment, direct the jury to find whether the special defence has been established and, if they find that it has, to declare whether the person is acquitted on that ground,

(b) in summary proceedings, state whether the special defence has been established and, if it states that it has, declare whether the person is acquitted on that ground.]

[F483 Unfitness for trial S

Textual Amendments

F483 S. 53F and cross-heading inserted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 170(1), 206(1); S.S.I. 2012/160, art. 3, sch.

53F Unfitness for trial S

(1) A person is unfit for trial if it is established on the balance of probabilities that the person is incapable, by reason of a mental or physical condition, of participating effectively in a trial.

(2) In determining whether a person is unfit for trial the court is to have regard to—

(a) the ability of the person to—

(i) understand the nature of the charge,

(ii) understand the requirement to tender a plea to the charge and the effect of such a plea,

(iii) understand the purpose of, and follow the course of, the trial,

(iv) understand the evidence that may be given against the person,

(v) instruct and otherwise communicate with the person's legal representative, and

(b) any other factor which the court considers relevant.

(3) The court is not to find that a person is unfit for trial by reason only of the person being unable to recall whether the event which forms the basis of the charge occurred in the manner described in the charge.

(4) In this section “the court” means—

(a) as regards a person charged on indictment, the High Court or the sheriff court,

(b) as regards a person charged summarily, the sheriff court.]

F484 ... S

Textual Amendments

F484 S. 54 cross-heading omitted (with application in accordance with art. 3 of the commencing S.S.I.) by virtue of Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 170(2), 206(1); S.S.I. 2012/160, art. 3, sch.

54 [F485 Unfitness for trial: further provision] . S

(1) Where the court is satisfiedF486 ... that a person charged with the commission of an offence is [F487 unfit for trial] so that his trial cannot proceed or, if it has commenced, cannot continue, the court shall, subject to subsection (2) below—

(a) make a finding to that effect and state the reasons for that finding;

(b) discharge the trial diet [F488 or, in proceedings on indictment where the finding is made at or before the first diet (in the case of proceedings in the sheriff court) or the preliminary hearing (in the case of proceedings in the High Court), that diet or, as the case may be, hearing] and order that a diet (in this Act referred to as an “an examination of facts”) be held under section 55 of this Act; and

(c) remand the person in custody or on bail or, where the court is satisfied—

(i) on the written or oral evidence of two medical practitioners, that [F489 the conditions mentioned in subsection (2A) below are met in respect of the person] ; and

(ii) that a hospital is available for his admission and suitable for his detention,

make an order (in this section referred to as a [F490 temporary compulsion order]) [F491 authorising the measures mentioned in subsection (2B) below in respect of the person] until the conclusion of the examination of facts.

(2) Subsection (1) above is without prejudice to the power of the court, on an application by the prosecutor, to desert the dietpro loco et tempore.

[F492 (2A) The conditions referred to in subsection (1)(c)(i) above are—

(a) that the person has a mental disorder;

(b) that medical treatment which would be likely to—

(i) prevent the mental disorder worsening; or

(ii) alleviate any of the symptoms, or effects, of the disorder,

is available for the person; and

(c) that if the person were not provided with such medical treatment there would be a significant risk—

(a) to the health, safety or welfare of the person; or

(b) to the safety of any other person.

(2B) The measures referred to in subsection (1)(c) above are—

(a) in the case of a person who, when the temporary compulsion order is made, has not been admitted to the specified hospital, the removal, before the [F493 end of the day following the] 7 days beginning with the day on which the order is made of the person to the specified hospital by—

(i) a constable;

(ii) a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or

(iii) a specified person;

(b) the detention of the person in the specified hospital; and

(c) the giving to the person, in accordance with Part 16 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13), of medical treatment.]

(3) The court may, before making a finding under subsection (1) above as to [F494 whether a person is unfit for trial] , adjourn the case in order that investigation of his mental [F495 or physical] condition may be carried out.

(4) The court which made a temporary [F496 compulsion] order may, at any time while the order is in force, review the order on the ground that there has been a change of circumstances since the order was made and, on such review—

(a) where the court considers that such an order is no longer required in relation to a person, it shall revoke the order and may remand him in custody or on bail;

(b) in any other case, the court may—

(i) confirm or vary the order; or

(ii) revoke the order and make such other order, under subsection (1)(c) above or any other provision of this Act, as the court considers appropriate.

(5) Where it appears to a court that it is not practicable or appropriate for the accused to be brought before it for the purpose of determining whether he is [F497 unfit for trial] so that his trial cannot proceed, then, if no objection to such a course is taken by or on behalf of the accused, the court may order that the case be proceeded with in his absence.

F498 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F498 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) In this section

• [F499 “medical treatment” has the same meaning as in section 52D of this Act;

• “specified” means specified in the temporary compulsion order; and],

• “the court” means—

  (a)

  as regards a person charged on indictment, the High Court or the sheriff court;

  (b)

  as regards a person charged summarily, the sheriff court.

Textual Amendments

F485 S. 54 heading substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 170(2), 206(1); S.S.I. 2012/160, art. 3, sch.

F486 Words in s. 54(1) repealed (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 170(2)(a)(i), 206(1); S.S.I. 2012/160, art. 3, sch.

F487 Words in s. 54(1) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 170(2)(a)(ii), 206(1); S.S.I. 2012/160, art. 3, sch.

F488 Words in s. 54(1)(b) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 13; S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F489 Words in s. 54(1)(c)(i) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(2)(a)(i); S.S.I. 2005/161, art. 3 (with savings for s. 54(1)(c) by virtue of S.S.I. 2005/452, art. 33(18))

F490 Words in s. 54(1)(c) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(2)(a)(ii); S.S.I. 2005/161, art. 3 (with savings for s. 54(1)(c) by virtue of S.S.I. 2005/452, art. 33(18))

F491 Words in s. 54(1)(c) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(2)(a)(iii); S.S.I. 2005/161, art. 3 (with savings for s. 54(1)(c) by virtue of S.S.I. 2005/452, art. 33(18))

F492 S. 54(2A)(2B) inserted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(2)(b); S.S.I. 2005/161, art. 3 (as amended (27.9.2005) by the repeal of "(i)" in the inserted subsection (2B) by virtue of S.S.I. 2005/465, art. 3, Sch. 2) (with savings for s. 54(2A)(2B) by virtue of S.S.I. 2005/452, art. 33(18))

F493 Words in s. 54(2B)(a) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 42(5), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 21(b))

F494 Words in s. 54(3) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 170(2)(b)(i), 206(1); S.S.I. 2012/160, art. 3, sch.

F495 Words in s. 54(3) inserted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 170(2)(b)(ii), 206(1); S.S.I. 2012/160, art. 3, sch.

F496 Word in s. 54(4) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(2)(c); S.S.I. 2005/161, art. 3 (with savings for s. 54(4) by virtue of S.S.I. 2005/452, art. 33(18))

F497 Words in s. 54(5) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 170(2)(c), 206(1); S.S.I. 2012/160, art. 3, sch.

F498 S. 54(6)(7) repealed (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 170(3), 206(1); S.S.I. 2012/160, art. 3, sch.

F499 Words in s. 54(8) inserted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(2)(d); S.S.I. 2005/161, art. 3 (with savings for s. 54(8) by virtue of S.S.I. 2005/452, art. 33(18))

Examination of facts S

55 Examination of facts. S

(1) At an examination of facts ordered under section 54(1)(b) of this Act the court shall, on the basis of the evidence (if any) already given in the trial and such evidence, or further evidence, as may be led by either party, determine whether it is satisfied—

(a) beyond reasonable doubt, as respects any charge on the indictment or, as the case may be, the complaint in respect of which the accused was being or was to be tried, that he did the act or made the omission constituting the offence; and

(b) on the balance of probabilities, that there are no grounds for acquitting him.

(2) Where the court is satisfied as mentioned in subsection (1) above, it shall make a finding to that effect.

(3) Where the court is not so satisfied it shall, subject to subsection (4) below, acquit the person of the charge.

(4) Where, as respects a person acquitted under subsection (3) above, the court is satisfied as to the matter mentioned in subsection (1)(a) above but it appears to the court that the person was [F500 not, because of section 51A of this Act, criminally responsible for the conduct] constituting the offence, the court shall state whether the acquittal is [F501 by reason of the special defence set out in that section] .

(5) Where it appears to the court that it is not practical or appropriate for the accused to attend an examination of facts the court may, if no objection is taken by or on behalf of the accused, order that the examination of facts shall proceed in his absence.

(6) Subject to the provisions of this section, section 56 of this Act and any Act of Adjournal the rules of evidence and procedure and the powers of the court shall, in respect of an examination of facts, be as nearly as possible those applicable in respect of a trial.

(7) For the purposes of the application to an examination of facts of the rules and powers mentioned in subsection (6) above, an examination of facts—

(a) commences when the indictment or, as the case may be, complaint is called; and

(b) concludes when the court—

(i) acquits the person under subsection (3) above;

(ii) makes an order under subsection (2) of section 57 of this Act; or

(iii) decides, under paragraph (e) of that subsection, not to make an order.

Textual Amendments

F500 Words in s. 55(4) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 37(a); S.S.I. 2012/160, art. 3, sch.

F501 Words in s. 55(4) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 37(b); S.S.I. 2012/160, art. 3, sch.

56 Examination of facts: supplementary provisions. S

(1) An examination of facts ordered under section 54(1)(b) of this Act may, where the order is made at the trial diet [F502 or, in proceedings on indictment, at the first diet (in the case of proceedings in the sheriff court) or the preliminary hearing (in the case of proceedings in the High Court)] , be held immediately following the making of the order and, where it is so held, the citation of the accused and any witness to the trial diet [F503 , first diet or, as the case may be, preliminary hearing] shall be a valid citation to the examination of facts.

(2) F504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where an accused person is not legally represented at an examination of facts the court shall appoint counsel or a solicitor to represent his interests.

(4) The court may, on the motion of the prosecutor and after hearing the accused, order that the examination of facts shall proceed in relation to a particular charge, or particular charges, in the indictment or, as the case may be, complaint in priority to other such charges.

(5) The court may, on the motion of the prosecutor and after hearing the accused, at any time desert the examination of facts pro loco et tempore as respects either the whole indictment or, as the case may be, complaint or any charge therein.

(6) Where, and to the extent that, an examination of facts has, under subsection (5) above, been deserted pro loco et tempore—

(a) in the case of proceedings on indictment, the Lord Advocate may, at any time, raise and insist in a new indictment; or

(b) in the case of summary proceedings, the prosecutor may at any time raise a fresh libel,

notwithstanding any time limit which would otherwise apply in respect of prosecution of the alleged offence.

(7) If, in a case where a court has made a finding under subsection (2) of section 55 of this Act, a person is subsequently charged, whether on indictment or on a complaint, with an offence arising out of the same act or omission as is referred to in subsection (1) of that section, any order made under section 57(2) of this Act shall, with effect from the commencement of the later proceedings, cease to have effect.

(8) For the purposes of subsection (7) above, the later proceedings are commenced when the indictment or, as the case may be, the complaint is served.

Textual Amendments

F502 Words in s. 56(1) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 14(a)(i); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F503 Words in s. 56(1) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 14(a)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F504 S. 56(2) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 14(b); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

Disposal [F505 where accused found not criminally responsible] S

Textual Amendments

F505 Words in s. 57 cross-heading substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 38; S.S.I. 2012/160, art. 3, sch.

57 Disposal of case where accused found [F506 not criminally responsible or unfit for trial]. S

(1) This section applies where—

(a) a person is [F507 acquitted by reason of the special defence set out in section 51A of this Act]; or

(b) following an examination of facts under section 55, a court makes a finding under subsection (2) of that section.

(2) Subject to subsection (3) below, where this section applies the court may, as it thinks fit—

(a) [F508 subject to subsection (4) below, make a compulsion order [F509 (whether or not authorising the detention of the person in a hospital)]];

[F510 (b) subject to subsection (4A) below, make a restriction order in respect of the person (that is, in addition to a compulsion order authorising the detention of the person in a hospital);]

[F511 [F512 (bb) subject to subsections (3A) and (4B) below, make an interim compulsion order in respect of the person;]]

(c) [F513 subject to subsections (4C) and (6) below, make a guardianship order in respect of the person];

(d) [F514 subject to subsection (5) below,] make a supervision and treatment order (within the meaning of paragraph 1(1) of Schedule 4 to this Act [F515 in respect of the person]); or

(e) make no order.

[F516 (3) Where the court is satisfied, having regard to a report submitted in respect of the person following an interim [F517 compulsion] order, that, on a balance of probabilities, the risk his being at liberty presents to the safety of the public at large is high, it shall make orders under both paragraphs (a) and (b) of subsection (2) above in respect of that person.]

[F518 (3A) The court may make an interim compulsion order under paragraph (bb) of subsection (2) above in respect of a person only where it has not previously made such an order in respect of the person under that paragraph.]

[F519 (4) For the purposes of subsection (2)(a) above—

(a) subsections (2) to (16) of section 57A of this Act shall apply as they apply for the purposes of subsection (1) of that section, subject to the following modifications—

(i) references to the offender shall be construed as references to the person to whom this section applies; and

(ii) in subsection (4)(b)(i), the reference to the offence of which the offender was convicted shall be construed as a reference to the offence with which the person to whom this section applies was charged;

(b) section 57B of this Act shall have effect subject to the modification that references to the offender shall be construed as references to the person to whom this section applies;

(c) section 57C of this Act shall have effect subject to the following modifications—

(i) references to the offender shall be construed as references to the person to whom this section applies; and

(ii) references to section 57A of this Act shall be construed as references to subsection (2)(a) above; and

(d) section 57D of this Act shall have effect subject to the modification that references to the offender shall be construed as references to the person to whom this section applies.

(4A) For the purposes of subsection (2)(b) above, section 59 of this Act shall have effect.

(4B) For the purposes of subsection (2)(bb) above—

(a) subsections (2) to (13) of section 53 of this Act shall apply as they apply for the purposes of subsection (1) of that section, subject to the following modifications—

(i) references to the offender shall be construed as references to the person to whom this section applies;

(ii) in subsection (3)(a)(ii), the reference to one of the disposals mentioned in subsection (6) of that section shall be construed as a reference to the disposal mentioned in subsection (6)(a) of that section;

(iii) in subsection (4)(a), the reference to the offence of which the offender is convicted shall be construed as a reference to the offence with which the person to whom this section applies is charged; and

(iv) subsection (6)(b) shall not apply;

(b) section 53A of this Act shall have effect subject to the modification that references to the offender shall be construed as references to the person to whom this section applies;

(c) section 53B of this Act shall have effect subject to the following modifications—

(i) references to the offender shall be construed as references to the person to whom this section applies; and

(ii) for paragraphs (a) and (b) of subsection (8) there shall be substituted “, revoke the interim compulsion order and—

(a) make an order in respect of the person under paragraph (a), (b), (c) or (d) of subsection (2) of section 57 of this Act; or

(b) decide, under paragraph (e) of that subsection, to make no order in respect of the person.”;

(d) section 53C of this Act shall have effect subject to the following modifications—

(i) references to the offender shall be construed as references to the person to whom this section applies; and

(ii) for paragraphs (a) to (c) of subsection (1) there shall be substituted—

“(a) makes an order in respect of the person under paragraph (a), (b), (c) or (d) of subsection (2) of section 57 of this Act; or

(b) decides, under paragraph (e) of that subsection, to make no order in respect of the person.”; and

(e) section 53D of this Act shall have effect subject to the modification that the reference to the offender shall be construed as a reference to the person to whom this section applies.

(4C) For the purposes of subsection (2)(c) above, subsections (1A), (6) to (8) and (11) of section 58 of this Act shall apply, subject to the modifications that the reference to a person convicted and any references to the offender shall be construed as references to the person to whom this section applies.]

(5) Schedule 4 to this Act shall have effect as regards supervision and treatment orders.

[F520 (6) Section 58A of this Act shall have effect as regards guardianship orders made under subsection (2)(c) of this section.]

Textual Amendments

F506 Words in s. 57 heading substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 38; S.S.I. 2012/160, art. 3, sch.

F507 Words in s. 57(1)(a) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 39; S.S.I. 2012/160, art. 3, sch.

F508 Words in s. 57(2)(a) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(3)(a)(i); S.S.I. 2005/161, art. 3

F509 Words in s. 57(2)(a) substituted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 39(2)(a), 61(2); S.S.I. 2017/197, art. 2, sch.

F510 S. 57(2)(b) substituted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 39(2)(b), 61(2); S.S.I. 2017/197, art. 2, sch.

F511 S. 57(2)(bb) inserted (4.10.2005) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 2(a), 89; S.S.I. 2005/433, art. 2

F512 S. 57(2)(bb) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(3)(a)(iii); S.S.I. 2005/161, art. 3

F513 Words in s. 57(2)(c) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(3)(a)(iv); S.S.I. 2005/161, art. 3

F514 Words in s. 57(2)(d) inserted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(3)(a)(v)(A); S.S.I. 2005/161, art. 3

F515 Words in s. 57(2)(d) inserted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(3)(a)(v)(B); S.S.I. 2005/161, art. 3

F516 S. 57(3) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {2(b)}, 89; S.S.I. 2003/288, art. 2, Sch.

F517 Word in s. 57(3) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(3)(b); S.S.I. 2005/161, art. 3

F518 S. 57(3A) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(3)(c); S.S.I. 2005/161, art. 3

F519 S. 57(4)-(4C) substituted (5.10.2005) for s. 57(4) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(3)(d); S.S.I. 2005/161, art. 3

F520 S. 57(6) inserted (1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 26(1)(c); S.S.I. 2001/81, art. 3, Sch. 2

Modifications etc. (not altering text)

C31 S. 57(2)(a) extended (1.1.1998) by 1997 c. 48, s. 9(1)(a) (subject to s. 9(2)); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

[F521 Compulsion orders S

Textual Amendments

F521 Ss. 57A-57D and cross-heading inserted (21.3.2005 for certain purposes and otherwise 5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 133, 333(1)-(4); S.S.I. 2005/161, arts. 2, 3, Sch. 1 (as amended (27.9.2005) by S.S.I. 2005/465, art. 2, Sch. 1 para. 32(14))

57A Compulsion order S

(1) This section applies where a person (in this section and in sections 57B to 57D of this Act, referred to as the “offender”)—

(a) is convicted in the High Court or the sheriff court of an offence punishable by imprisonment (other than an offence the sentence for which is fixed by law); or

(b) is remitted to the High Court by the sheriff under any enactment for sentence for such an offence.

(2) If the court is satisfied—

(a) on the written or oral evidence of two medical practitioners, that the conditions mentioned in subsection (3) below are met in respect of the offender; and

(b) that, having regard to the matters mentioned in subsection (4) below, it is appropriate,

it may, subject to subsection (5) below, make an order (in this Act referred to as a “compulsion order”) authorising, subject to subsection (7) below, for the [F522 relevant period given by subsection (2A) below] such of the measures mentioned in subsection (8) below as may be specified in the order.

[F523 (2A) For the purpose of subsection (2) above, the relevant period is the period—

(a) beginning with the day on which the order is made,

(b) expiring at the end of the 6 months following that day.]

(3) The conditions referred to in subsection (2)(a) above are—

(a) that the offender has a mental disorder;

(b) that medical treatment which would be likely to—

(i) prevent the mental disorder worsening; or

(ii) alleviate any of the symptoms, or effects, of the disorder,

is available for the offender;

(c) that if the offender were not provided with such medical treatment there would be a significant risk—

(i) to the health, safety or welfare of the offender; or

(ii) to the safety of any other person; and

(d) that the making of a compulsion order in respect of the offender is necessary.

(4) The matters referred to in subsection (2)(b) above are—

(a) the mental health officer’s report, prepared in accordance with section 57C of this Act, in respect of the offender;

(b) all the circumstances, including—

(i) the nature of the offence of which the offender was convicted; and

(ii) the antecedents of the offender; and

(c) any alternative means of dealing with the offender.

(5) The court may, subject to subsection (6) below, make a compulsion order authorising the detention of the offender in a hospital by virtue of subsection (8)(a) below only if satisfied, on the written or oral evidence of the two medical practitioners mentioned in subsection (2)(a) above, that—

(a) the medical treatment mentioned in subsection (3)(b) above can be provided only if the offender is detained in hospital;

(b) the offender could be admitted to the hospital to be specified in the order before the [F524 end of the day following the] 7 days beginning with the day on which the order is made; and

(c) the hospital to be so specified is suitable for the purpose of giving the medical treatment to the offender.

(6) A compulsion order may authorise detention in a state hospital only if, on the written or oral evidence of the two medical practitioners mentioned in subsection (2)(a) above, it appears to the court—

(a) that the offender requires to be detained in hospital under conditions of special security; and

(b) that such conditions of special security can be provided only in a state hospital.

(7) Where the court—

(a) makes a compulsion order in respect of an offender; and

(b) also makes a restriction order in respect of the offender,

the compulsion order shall authorise the measures specified in it without limitation of time.

(8) The measures mentioned in subsection (2) above are—

(a) the detention of the offender in the specified hospital;

(b) the giving to the offender, in accordance with Part 16 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13), of medical treatment;

(c) the imposition of a requirement on the offender to attend—

(i) on specified or directed dates; or

(ii) at specified or directed intervals,

specified or directed places with a view to receiving medical treatment;

(d) the imposition of a requirement on the offender to attend—

(i) on specified or directed dates; or

(ii) at specified or directed intervals,

specified or directed places with a view to receiving community care services, relevant services or any treatment, care or service;

(e) subject to subsection (9) below, the imposition of a requirement on the offender to reside at a specified place;

(f) the imposition of a requirement on the offender to allow—

(i) the mental health officer;

(ii) the offender’s responsible medical officer; or

(iii) any person responsible for providing medical treatment, community care services, relevant services or any treatment, care or service to the offender who is authorised for the purposes of this paragraph by the offender’s responsible medical officer,

to visit the offender in the place where the offender resides;

(g) the imposition of a requirement on the offender to obtain the approval of the mental health officer to any change of address; and

(h) the imposition of a requirement on the offender to inform the mental health officer of any change of address before the change takes effect.

(9) The court may make a compulsion order imposing, by virtue of subsection (8)(e) above, a requirement on an offender to reside at a specified place which is a place used for the purpose of providing a care home service only if the court is satisfied that the person providing the care home service is willing to receive the offender.

(10) The Scottish Ministers may, by regulations made by statutory instrument, make provision for measures prescribed by the regulations to be treated as included among the measures mentioned in subsection (8) above.

(11) The power conferred by subsection (10) above may be exercised so as to make different provision for different cases or descriptions of case or for different purposes.

(12) No regulations shall be made under subsection (10) above unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, the Scottish Parliament.

(13) The court shall be satisfied as to the condition mentioned in subsection (3)(a) above only if the description of the offender’s mental disorder by each of the medical practitioners mentioned in subsection (2)(a) above specifies, by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13), at least one type of mental disorder that the offender has that is also specified by the other.

(14) A compulsion order—

(a) shall specify—

(i) by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13), the type (or types) of mental disorder that each of the medical practitioners mentioned in subsection (2)(a) above specifies that the offender has that is also specified by the other; and

(ii) if the order does not, by virtue of subsection (8)(a) above, authorise the detention of the offender in hospital, the name of the hospital the managers of which are to have responsibility for appointing the offender’s responsible medical officer; and

(b) may include—

(i) in a case where a compulsion order authorises the detention of the offender in a specified hospital by virtue of subsection (8)(a) above; or

(ii) in a case where a compulsion order imposes a requirement on the offender to reside at a specified place by virtue of subsection (8)(e) above,

such directions as the court thinks fit for the removal of the offender to, and the detention of the offender in, a place of safety pending the offender’s admission to the specified hospital or, as the case may be, place.

(15) Where the court makes a compulsion order in relation to an offender, the court—

(a) shall not—

(i) make an order under section 200 of this Act;

(ii) make an interim compulsion order;

(iii) make a guardianship order;

(iv) pass a sentence of imprisonment;

(v) impose a fine;

[F525 (vi) impose a community payback order;

(vii) make a drug treatment and testing order; or

(viii) make a restriction of liberty order,]

in relation to the offender;

(b) may make any other order that the court has power to make apart from this section.

(16) In this section—

• “care home service” has the meaning given by [F526 paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010] ;

• “community care services” has the meaning given by section [F527 12A(8)] of the Social Work (Scotland) Act 1968 (c. 49);

• “medical treatment” has the same meaning as in section 52D of this Act;

• “relevant services” has the meaning given by section [F528 20(2)] of the Children (Scotland) Act 1995 (c. 36);

• “responsible medical officer”, in relation to an offender, means the responsible medical officer appointed in respect of the offender under section 230 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13);

• “restriction order” means an order under section 59 of this Act;

• “sentence of imprisonment” includes any sentence or order for detention; and

• “specified” means specified in the compulsion order.

Textual Amendments

F522 Words in s. 57A(2) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 43(2)(a), 61(2); S.S.I. 2017/197, art. 2, sch.

F523 S. 57A(2A) inserted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 43(2)(b), 61(2); S.S.I. 2017/197, art. 2, sch.

F524 Words in s. 57A(5)(b) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 43(2)(c), 61(2); S.S.I. 2017/197, art. 2, sch.

F525 S. 57A(15)(a)(vi)-(viii) substituted for s. 57A(15)(a)(vi)(vii) (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 5; S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F526 Words in s. 57A(16) substituted (1.4.2011) by The Public Services Reform (Scotland) Act 2010 (Consequential Modifications) Order 2011 (S.S.I. 2011/211), art. 1, sch. 1 para. 7

F527 Word in s. 57A(16) substituted (1.4.2015) by The Public Bodies (Joint Working) (Scotland) Act 2014 (Consequential Modifications and Saving) Order 2015 (S.S.I. 2015/157), art. 1(1), sch. para. 3

F528 Word in s. 57A(16) substituted (1.4.2017) by Children and Young People (Scotland) Act 2014 (asp 8), s. 102(3), sch. 5 para. 5(3); S.S.I. 2016/254, art. 3(3)(c)

57B Compulsion order authorising detention in hospital or requiring residence at place: ancillary provision S

(1) Where a compulsion order—

(a) authorises the detention of an offender in a specified hospital; or

(b) imposes a requirement on an offender to reside at a specified place,

this section authorises the removal, before the [F529 end of the day following the] 7 days beginning with the day on which the order is made, of the offender to the specified hospital or place, by any of the persons mentioned in subsection (2) below.

(2) Those persons are—

(a) a constable;

(b) a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; and

(c) a specified person.

(3) In this section, “specified” means specified in the compulsion order.

Textual Amendments

F529 Words in s. 57B(1) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 43(3), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 22(a))

57C Mental health officer’s report S

(1) This section applies where the court is considering making a compulsion order in relation to an offender under section 57A of this Act.

(2) If directed to do so by the court, the mental health officer shall—

(a) subject to subsection (3) below, interview the offender; and

(b) prepare a report in relation to the offender in accordance with subsection (4) below.

(3) If it is impracticable for the mental health officer to comply with the requirement in subsection (2)(a) above, the mental health officer need not do so.

(4) The report shall state—

(a) the name and address of the offender;

(b) if known by the mental health officer, the name and address of the offender’s primary carer;

(c) in so far as relevant for the purposes of section 57A of this Act, details of the personal circumstances of the offender; and

(d) any other information that the mental health officer considers relevant for the purposes of that section.

(5) In this section—

• “carer”, and “primary”, in relation to a carer, have the meanings given by section 329(1) of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13);

• “mental health officer” means a person appointed (or deemed to be appointed) under section 32(1) of that Act; and

• “named person” has the meaning given by section 329(1) of that Act.

57D Compulsion order: supplementary S

(1) If, before the [F530 end of the day following the] 7 days beginning with the day on which a compulsion order authorising detention of the offender in a hospital is made, it appears to the court, or, as the case may be, the Scottish Ministers, that, by reason of emergency or other special circumstances, it is not reasonably practicable for the offender to be admitted to the hospital specified in the order, the court, or, as the case may be, the Scottish Ministers, may direct that the offender be admitted to the hospital specified in the direction.

(2) Where—

(a) the court makes a direction under subsection (1) above, it shall inform the person having custody of the offender; and

(b) the Scottish Ministers make such a direction, they shall inform—

(i) the court; and

(ii) the person having custody of the offender.

(3) Where a direction is made under subsection (1) above, the compulsion order shall have effect as if the hospital specified in the direction were the hospital specified in the order.

(4) In this section, “court” means the court which made the compulsion order.]

Textual Amendments

F530 Words in s. 57D(1) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 43(4), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 22(b))

Modifications etc. (not altering text)

C32 S. 57D(1) modified (5.10.2005) by The Mental Health (Care and Treatment) (Scotland) Act 2003 (Transitional and Savings Provisions) Order 2005 (S.S.I. 2005/452), art. 9(5)

Hospital orders and guardianship S

58 Order for hospital admission or guardianship. S

[F531 (1) F532 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1A) Where a person is convicted [F533 in the High Court or the sheriff court of an offence, other than an offence the sentence for which is fixed by law, punishable by that court with imprisonment,] and the court is satisfied—

(a) on the evidence of two medical practitioners (complying with section 61 of this Act and with any requirements imposed under section 57(3) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)) that the grounds set out in section 58(1)(a) of that Act apply in relation to the offender;

(b) that no other means provided by or under this Act would be sufficient to enable the offender’s interests in his personal welfare to be safeguarded or promoted,

the court may, subject to subsection (2) below, by order place the offender’s personal welfare under the guardianship of such local authority or of such other person approved by a local authority as may be specified in the order.]

(2) Where the case is remitted by the sheriff to the High Court for sentence under any enactment, the power to make an order under [F534 subsection F535 . . . (1A)] above shall be exercisable by that court.

(3) Where in the case of a person charged summarily in the sheriff court with an act or omission constituting an offence the court would have power, on convicting him, to make an order under [F534 subsection F535 . . . (1A)] above, then, if it is satisfied that the person did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him.

(4) F536 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) F536 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F537 (6) An order placing a person under the guardianship of a local authority or of any other person (in this Act referred to as “a guardianship order”) shall not be made under this section unless the court is satisfied—

(a) on the report of a mental health officer (complying with any requirements imposed by section 57(3) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)) giving his opinion as to the general appropriateness of the order sought, based on an interview and assessment of the person carried out not more than 30 days before it makes the order, that it is necessary in the interests of the personal welfare of the person that he should be placed under guardianship;

(b) that any person nominated to be appointed a guardian is suitable to be so appointed;

(c) that the authority or person is willing to receive that person into guardianship; and

(d) that there is no other guardianship order, under this Act or the Adults with Incapacity (Scotland) Act 2000 (asp 4), in force relating to the [F538 person's personal welfare which makes the same provision as the guardianship order which the court proposes to make under this section] .]

(7) A F539 . . . guardianship order [F540 made under this section] shall specify [F541 (by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13)) the type (or types) of mental disorder that the [F542 person] has] ; and no such order shall be made unless [F543 the descriptions of the [F542 person’s] mental disorder by each of the medical practitioners, whose evidence is taken into account under subsection (1A)(a) above, specifies at least one type of mental disorder that is also specified by the other].

(8) Where an order is made under this section, the court shall not pass sentence of imprisonment or impose a fine or [F544 impose a community payback order or make a drug treatment and testing order] in respect of the offence, but may make any other order which the court has power to make apart from this section; and for the purposes of this subsection “sentence of imprisonment” includes any sentence or order for detention.

(9) F545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) F545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F546 (11) Section 58A of this Act shall have effect as regards guardianship orders made under F547 . . . this section.]

Textual Amendments

F531 S. 58(1)(1A) substituted for s. 58(1) (1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 26(2)(a); S.S.I. 2001/81, art. 3, Sch. 2

F532 S. 58(1) repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(2)(3), 333(1)-(4), Sch. 5 Pt. 1; S.S.I. 2005/161, art. 3

F533 Words in s. 58(1A) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(4)(a); S.S.I. 2005/161, art. 3

F534 Words in s. 58(2)(3)(10) substituted (1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 26(2)(b); S.S.I. 2001/81, art. 3, Sch. 2

F535 Words in s. 58(2)(3) repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(2)(3), 333(1)-(4), Sch. 5 Pt. 1; S.S.I. 2005/161, art. 3

F536 S. 58(4)(5) repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(2)(3), 333(1)-(4), Sch. 5 Pt. 1; S.S.I. 2005/161, art. 3

F537 S. 58(6) substituted (1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 26(2)(d); S.S.I. 2001/81, art. 3, Sch. 2

F538 Words in s. 58(6)(d) substituted (5.10.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 77(1), 79, Sch. 1 para. 4(a); S.S.I. 2007/334, art. 2(b), Sch. 2

F539 Words in s. 58(7) repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(2)(3), 333(1)-(4), Sch. 5 Pt. 1; S.S.I. 2005/161, art. 3

F540 Words in s. 58(7) inserted (5.10.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 77(1), 79, Sch. 1 para. 4(b)(i); S.S.I. 2007/334, art. 2(b), Sch. 2

F541 Words in s. 58(7) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(4)(b)(i); S.S.I. 2005/161, art. 3

F542 Word in s. 58(7) substituted (5.10.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 77(1), 79, Sch. 1 para. 4(b)(ii); S.S.I. 2007/334, art. 2(b), Sch. 2

F543 Words in s. 58(7) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(4)(b)(ii); S.S.I. 2005/161, art. 3

F544 Words in s. 58(8) substituted (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 6; S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F545 S. 58(9)(10) repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(2)(3), 333(1)-(4), Sch. 5 Pt. 1; S.S.I. 2005/161, art. 3

F546 S. 58(11) inserted (1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 26(2)(e); S.S.I. 2001/81, art. 3, Sch. 2

F547 Words in s. 58(11) repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(2)(3), 333(1)-(4), Sch. 5 Pt. 1; S.S.I. 2005/161, art. 3

Modifications etc. (not altering text)

C33 S. 58 extended (1.1.1998) by 1997 c. 48, s. 9(1)(b) (subject to s. 9(2)); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

[F548 58A Application of Adults with Incapacity (Scotland) Act 2000 S

(1) Subject to the provisions of this section, the provisions of Parts 1, 5, 6 and 7 of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (“the 2000 Act”) apply—

(a) to a guardian appointed by an order of the court under section 57(2)(c), 58(1) or 58(1A) of this Act (in this section referred to as a “guardianship order”) whether appointed before or after the coming into force of these provisions, as they apply to a guardian with powers relating to the personal welfare of an adult appointed under section 58 of that Act;

(b) to a person authorised under an intervention order under section [F549 60B] of this Act as they apply to a person so authorised under section 53 of that Act.

(2) In making a guardianship order the court shall have regard to any regulations made by the Scottish Ministers under section 64(11) of the 2000 Act and—

(a) shall confer powers, which it shall specify in the order, relating only to the personal welfare of the person;

(b) may appoint a joint guardian;

(c) may appoint a substitute guardian;

(d) may make such consequential or ancillary order, provision or direction as it considers appropriate.

(3) Without prejudice to the generality of subsection (2), or to any other powers conferred by this Act, the court may—

(a) make any order granted by it subject to such conditions and restrictions as appear to it to be appropriate;

(b) order that any reports relating to the person who will be the subject of the order be lodged with the court or that the person be assessed or interviewed and that a report of such assessment or interview be lodged;

(c) make such further inquiry or call for such further information as appears to it to be appropriate;

(d) make such interim order as appears to it to be appropriate pending the disposal of the proceedings.

(4) Where the court makes a guardianship order it shall forthwith send a copy of the interlocutor containing the order to the Public Guardian who shall—

(a) enter prescribed particulars of the appointment in the register maintained by him under section 6(2)(b)(iv) of the 2000 Act;

(b) unless he considers that the notification would be likely to pose a serious risk to the person’s health notify the person of the appointment of the guardian; and

(c) notify the local authority and the Mental Welfare Commission of the terms of the interlocutor.

(5) A guardianship order shall continue in force for a period of 3 years or such other period (including an indefinite period) as, on cause shown, the court may determine.

(6) Where any proceedings for the appointment of a guardian under section 57(2)(c) or 58(1) of this Act have been commenced and not determined before the date of coming into force of section 84 of, and paragraph 26 of schedule 5 to, the Adults with Incapacity (Scotland) Act 2000 (asp 4) they shall be determined in accordance with this Act as it was immediately in force before that date.]

Textual Amendments

F548 S. 58A inserted (1.4.2002) by 2000 asp 4, s. 84(2); S.S.I. 2001/81, art. 3, Sch. 2

F549 S. 58A: "In section 84 (applications to guardians appointed under Criminal Procedure (Scotland) Act 1995 (c. 46), in subsection (1)(b) of the section prospectively inserted by subsection (2), for the words "60A" there is substituted "60B"" (1.4.2002) by virtue of 2001 asp 8, s. 79, Sch. 3 para. 23(5); S.S.I. 2002/162, art. 2(h) (subject to arts. 3-13)

59 Hospital orders: restrictions on discharge. S

(1) Where a [F550 compulsion order authorising the detention of a person in a hospital by virtue of paragraph (a) of section 57A(8) of this Act] is made in respect of a person, and it appears to the court—

(a) having regard to the nature of the offence with which he is charged;

(b) the antecedents of the person; and

(c) the risk that as a result of his mental disorder he would commit offences if set at large,

that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the person shall be subject to the special restrictions set out in [F551 Part 10 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13)] , without limit of time.

(2) An order under this section (in this Act referred to as “a restriction order”) shall not be made in the case of any person unless the [F552 approved medical practitioner] , whose evidence is taken into account by the court under [F553 section 57A(2)(a)] of this Act, has given evidence orally before the court.

[F554 (2A) The court may, in the case of a person in respect of whom it did not, before making the compulsion order, make an interim compulsion order, make a restriction order in respect of the person only if satisfied that, in all the circumstances, it was not appropriate to make an interim compulsion order in respect of the person.]

(3) F555 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F550 Words in s. 59(1) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(5)(a)(i); S.S.I. 2005/161, art. 3

F551 Words in s. 59(1) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(5)(a)(ii); S.S.I. 2005/161, art. 3

F552 Words in s. 59(2) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(5)(b)(i); S.S.I. 2005/161, art. 3

F553 Words in s. 59(2) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(5)(b)(ii); S.S.I. 2005/161, art. 3

F554 S. 59(2A) inserted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(5)(c); S.S.I. 2005/161, art. 3

F555 S. 59(3) repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(2)(3), 333(1)(-(4), {Sch. 5 Pt. 1}; S.S.I. 2005/161 {art. 3}

[F556 Hospital directions] S

Textual Amendments

F556 Ss. 59A-59C and preceding cross-heading substituted for s. 59A (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(6); S.S.I. 2005/161, art. 3

[F557 59A Hospital direction S

(1) This section applies where a person, not being a child, (in this section and in sections 59B and 59C of this Act referred to as the “offender”) is convicted on indictment in—

(a) the High Court; or

(b) the sheriff court,

of an offence punishable by imprisonment.

(2) If the court is satisfied—

(a) on the written or oral evidence of two medical practitioners—

(i) that the conditions mentioned in subsection (3) below are met in respect of the offender; and

(ii) as to the matters mentioned in subsection (4) below; and

(b) that, having regard to the matters mentioned in subsection (5) below, it is appropriate,

the court may, in addition to any sentence of imprisonment which it has the power or the duty to impose, make, subject to subsection (6) below, a direction (in this Act referred to as a “hospital direction”) authorising the measures mentioned in subsection (7) below.

(3) The conditions referred to in subsection (2)(a)(i) above are—

(a) that the offender has a mental disorder;

(b) that medical treatment which would be likely to—

(i) prevent the mental disorder worsening; or

(ii) alleviate any of the symptoms, or effects, of the disorder,

is available for the offender;

(c) that if the offender were not provided with such medical treatment there would be a significant risk—

(i) to the health, safety or welfare of the offender; or

(ii) to the safety of any other person; and

(d) that the making of a hospital direction in respect of the offender is necessary.

(4) The matters referred to in subsection (2)(a)(ii) above are—

(a) that the hospital proposed by the two medical practitioners mentioned in subsection (2)(a) above is suitable for the purpose of giving the medical treatment mentioned in paragraph (b) of subsection (3) above to the offender; and

(b) that, were a hospital direction made, the offender could be admitted to such hospital before the [F558 end of the day following the] 7 days beginning with the day on which the direction is made.

(5) The matters referred to in subsection (2)(b) above are—

(a) the mental health officer’s report, prepared in accordance with section 59B of this Act, in respect of the offender;

(b) all the circumstances, including—

(i) the nature of the offence of which the offender was convicted; and

(ii) the antecedents of the offender; and

(c) any alternative means of dealing with the offender.

(6) A hospital direction may authorise detention in a state hospital only if, on the written or oral evidence of the two medical practitioners mentioned in subsection (2)(a) above, it appears to the court—

(a) that the offender requires to be detained in a state hospital under conditions of special security; and

(b) that such conditions of special security can be provided only in a state hospital.

(7) The measures mentioned in subsection (2) above are—

(a) in the case of an offender who, when the hospital direction is made, has not been admitted to the specified hospital, the removal, before the [F559 end of the day following the] 7 days beginning with the day on which the direction is made, of the offender to the specified hospital by—

(i) a constable;

(ii) a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or

(iii) a specified person;

(b) the detention of the offender in the specified hospital; and

(c) the giving to the offender, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), of medical treatment.

(8) The court shall be satisfied as to the condition mentioned in subsection (3)(a) above only if the description of the offender’s mental disorder by each of the medical practitioners mentioned in subsection (2)(a) above specifies, by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), at least one type of mental disorder that the offender has that is also specified by the other.

(9) A hospital direction—

(a) shall specify, by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), the type (or types) of mental disorder that each of the medical practitioners mentioned in subsection (2)(a) above specifies that is also specified by the other; and

(b) may include such directions as the court thinks fit for the removal of the offender to, and the detention of the offender in, a place of safety pending the offender’s admission to the specified hospital.

(10) In this section—

• “medical treatment” has the same meaning as in section 52D of this Act; and

• “specified” means specified in the hospital direction.]

Textual Amendments

F557 Ss. 59A-59C and preceding cross-heading substituted for s. 59A (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(6); S.S.I. 2005/161, art. 3

F558 Words in s. 59A(4)(b) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 44(2)(a), 61(2); S.S.I. 2017/197, art. 2, sch.

F559 Words in s. 59A(7)(a) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 44(2)(b), 61(2); S.S.I. 2017/197, art. 2, sch.

[F560 59B Hospital direction: mental health officer’s report S

(1) This section applies where the court is considering making a hospital direction in relation to an offender under section 59A of this Act.

(2) If directed to do so by the court, the mental health officer shall—

(a) subject to subsection (3) below, interview the offender; and

(b) prepare a report in relation to the offender in accordance with subsection (4) below.

(3) If it is impracticable for the mental health officer to comply with the requirement in subsection (2)(a) above, the mental health officer need not do so.

(4) The report shall state—

(a) the name and address of the offender;

(b) if known by the mental health officer, the name and address of the offender’s primary carer;

(c) in so far as relevant for the purposes of section 59A of this Act, details of the personal circumstances of the offender; and

(d) any other information that the mental health officer considers relevant for the purposes of that section.

(5) In this section, “carer”, “primary”, in relation to a carer, and “mental health officer” have the same meanings as in section 57C of this Act.]

Textual Amendments

F560 Ss. 59A-59C and preceding cross heading substituted for s. 59A (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(6); S.S.I. 2005/161, art. 3

[F561 59C Hospital direction: supplementary S

(1) If, before the [F562 end of the day following the] 7 days beginning with the day on which a hospital direction is made, it appears to the court, or, as the case may be, the Scottish Ministers, that, by reason of emergency or other special circumstances, it is not reasonably practicable for the offender to be admitted to the hospital specified in the hospital direction, the court, or, as the case may be, the Scottish Ministers, may direct that the offender be admitted to such other hospital as is specified.

(2) Where—

(a) the court makes a direction under subsection (1) above, it shall inform the person having custody of the offender; and

(b) the Scottish Ministers make such a direction, they shall inform—

(i) the court; and

(ii) the person having custody of the offender.

(3) Where a direction is made under subsection (1) above, the hospital direction shall have effect as if the hospital specified in the hospital direction were the hospital specified by the court, or, as the case may be, the Scottish Ministers, under subsection (1) above.

(4) In this section, “court” means the court which made the hospital direction.]

Textual Amendments

F561 Ss. 59A-59C and preceding cross heading substituted for s. 59A (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(6); S.S.I. 2005/161, art. 3

F562 Words in s. 59C(1) substituted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 44(3), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 23)

60 Appeals against hospital orders. S

Where a [F563 compulsion] order, interim [F563 compulsion] order (but not a [F564 extension] thereof), guardianship order [F565 , a restriction order or a hospital direction] has been made by a court in respect of a person charged or brought before it, he may without prejudice to any other form of appeal under any rule of law (or, where an interim [F563 compulsion] order has been made, to any right of appeal against any other order or sentence which may be imposed), appeal against that [F566 order or, as the case may be, direction in] the same manner as against sentence.

Textual Amendments

F563 Word in s. 60 substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(7)(a); S.S.I. 2005/161 {art. 3} (with savings for s. 60 by virtue of S.S.I. 2005/452, art. 33(19))

F564 Word in s. 60 substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(7)(b); S.S.I. 2005/161 {art. 3} (with savings for s. 60 by virtue of S.S.I. 2005/452, art. 33(19))

F565 Words in s. 60 substituted (1.1.1998) by 1997 c. 48, s. 6(2)(a)(b); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

F566 Words in s. 60 substituted (1.1.1998) by 1997 c. 48, s. 6(2)(a)(b); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

[F567 60A Appeal by prosecutor against hospital orders etc. S

(1) This section applies where the court, in respect of a person charged or brought before it, has made—

[F568 (a) a compulsion order;

(b) a restriction order;

(c) a guardianship order;

(d) a decision under section 57(2)(e) of this Act to make no order; or

(e) a hospital direction.]

(2) Where this section applies, the prosecutor may appeal against any such order, decision or direction as is mentioned in subsection (1) above—

(a) if it appears to him that the order, decision or direction was inappropriate; or

(b) on a point of law,

and an appeal under this section shall be treated in the same manner as an appeal against sentence under section 108 of this Act.]

Textual Amendments

F567 S. 60A inserted (1.1.1998) by 1997 c. 48, s. 22; S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

F568 S. 60A(1)(a)-(e) substituted (5.10.2005) for s. 60A(1)(a)(b) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(8); S.S.I. 2005/161 {art. 3}

[F569 60B Intervention orders S

The court may instead of making a [F570 compulsion] order F571 . . . or a guardianship order under section 57(2)(c) or 58(1A) of this Act, make an intervention order(as defined in section 53(1) of the Adults with Incapacity (Scotland) Act 2000 (asp 4) where it considers that it would be appropriate to do so.]

Textual Amendments

F569 S. 60B inserted (1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 26(3) (as amended (1.4.2002) by 2001 asp 8, s. 79, Sch. 3 para. 23(7); S.S.I. 2001/304, art. 2); S.S.I. 2001/81, art. 3, Sch. 2

F570 Word in s. 60B substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(9); S.S.I. 2005/161 {art. 3}

F571 Words in s. 60B repealed (5.10.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 77(1), 79, Sch. 1 para. 4(c); S.S.I. 2007/334, art. 2(b), Sch. 2

X1 [F572 60C Acquitted persons: detention for medical examination S

(1) Subject to subsection (7) below, this section applies where a person charged with an offence is acquitted.

(2) If the court by or before which the person is acquitted is satisfied—

(a) on the written or oral evidence of two medical practitioners that the conditions mentioned in subsection (3) below are met in respect of the person; and

(b) that it is not practicable to secure the immediate examination of the person by a medical practitioner,

the court may, immediately after the person is acquitted, make an order authorising the measures mentioned in subsection (4) below for the purpose of enabling arrangements to be made for a medical practitioner to carry out a medical examination of the person.

(3) The conditions referred to in subsection (2)(a) above are—

(a) that the person has a mental disorder;

(b) that medical treatment which would be likely to—

(i) prevent the mental disorder worsening; or

(ii) alleviate any of the symptoms, or effects, of the disorder,

is available for the person; and

(c) that if the person were not provided with such medical treatment there would be a significant risk—

(i) to the health, safety or welfare of the person; or

(ii) to the safety of any other person.

(4) The measures referred to in subsection (2) above are—

(a) the removal of the person to a place of safety by—

(i) a constable; or

(ii) a person specified by the court; and

(b) the detention, subject to subsection (6) below, of the person in that place of safety for a period of 6 hours beginning with the time at which the order under subsection (2) above is made.

(5) If the person absconds—

(a) while being removed to a place of safety under subsection (4) above; or

(b) from the place of safety,

a constable or the person specified by the court under paragraph (a) of that subsection may, at any time during the period mentioned in paragraph (b) of that subsection, take the person into custody and remove the person to a place of safety.

(6) An order under this section ceases to authorise detention of a person if, following the medical examination of the person, a medical practitioner grants—

(a) an emergency detention certificate under section 36 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13); or

(b) a short-term detention certificate under section 44 of that Act.

(7) This section does not apply [F573 in a case where the person is acquitted by reason of the special defence set out in section 51A of this Act.]

F574 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F574 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) In this section, “medical treatment” has the same meaning as in section 52D of this Act.

Editorial Information

X1 S. 60C: With effect from 5.10.2005 s. 60C became subsumed by new cross-heading" Hospital directions ". Versions of this provision as it stood at any time before that date cannot be accessed directly by navigation from this version. To view those versions, it is recommended that users either conduct an 'advanced search' specifying an 'as at' date earlier than 5.10.2005 or navigate via the Part VI heading.

Textual Amendments

F572 Ss. 60C, 60D inserted (21.3.2005 for specified purpose and otherwise 5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 134, 333(1)-(4); S.S.I. 2005/161, arts. {2}, {3}

F573 Words in s. 60C(7) inserted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 40(a); S.S.I. 2012/160, art. 3, sch.

F574 S. 60C(7)(a)(b) repealed (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 40(b); S.S.I. 2012/160, art. 3, sch.

60D Notification of detention under section 60C S

(1) This section applies where a person has been removed to a place of safety under section 60C of this Act.

(2) The court shall, before the expiry of the period of 14 days beginning with the day on which the order under section 60C(2) of this Act is made, ensure that the Mental Welfare Commission is given notice of the matters mentioned in subsection (3) below.

(3) Those matters are—

(a) the name and address of the person removed to the place of safety;

(b) the date on and time at which the person was so removed;

(c) the address of the place of safety;

(d) if the person is removed to a police station, the reason why the person was removed there; and

(e) any other matter that the Scottish Ministers may, by regulations made by statutory instrument, prescribe.

(4) The power conferred by subsection (3)(e) above may be exercised so as to make different provision for different cases or descriptions of case or for different purposes.

(5) A statutory instrument containing regulations under subsection (3)(e) above shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.]

Textual Amendments

F572 Ss. 60C, 60D inserted (21.3.2005 for specified purpose and otherwise 5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 134, 333(1)-(4); S.S.I. 2005/161, arts. {2}, {3}

[F575 Miscellaneous provision] S

Textual Amendments

F575 S. 61 crossheading substituted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 46(2), 61(2); S.S.I. 2017/197, art. 2, sch.

61 Requirements as to medical evidence. S

F576 (1) Of the medical practitioners whose evidence is taken into account [F577 in making a finding F578 ... under any of the relevant provisions], at least one shall be [F579 an approved medical practitioner] .

[F580 (1A) Of the medical practitioners whose evidence is taken into account under section [F581 52M(2)(a), 53(2)(a)] , 54(1)(c), [F582 57A(2)(a)] or 59A(3)(a) and (b) of this Act, at least one shall be employed at the hospital which is to be specified in the order or, as the case may be, direction.]

F583 (2) Written or oral evidence given for the purposes of [F584 section 52D(2)(a) or][F585 any of the relevant provisions] shall include a statement as to whether the person giving the evidence is related to the accused and of any pecuniary interest which that person may have in the admission of the accused to hospital or his reception into guardianship.

F576 (3) For the purposes of [F586 making a finding under section [F587 52D(2)(a) ] F588 ... of this Act or of any of the relevant provisions] a report in writing purporting to be signed by a medical practitioner may, subject to the provisions of this section, be received in evidence without proof of the signature or qualifications of the practitioner; but the court may, in any case, require that the practitioner by whom such a report was signed be called to give oral evidence.

(4) Where any such report as aforesaid is tendered in evidence, otherwise than by or on behalf of the accused, then—

(a) if the accused is represented by counsel or solicitor, a copy of the report shall be given to his counsel or solicitor;

(b) if the accused is not so represented, the substance of the report shall be disclosed to the accused or, where he is a child under 16 years of age, to his parent or guardian if present in court;

(c) in any case, the accused may require that the practitioner by whom the report was signed be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by or on behalf of the accused,

and where the court is of the opinion that further time is necessary in the interests of the accused for consideration of that report, or the substance of any such report, it shall adjourn the case.

(5) For the purpose of calling evidence to rebut the evidence contained in any such report as aforesaid, arrangements may be made by or on behalf of an accused person detained in a hospital or, as respects a report for the purposes of [F589 section 54(1)(c) of this Act] , remanded in custody for his examination by any medical practitioner, and any such examination may be made in private.

[F590 (6) In this section the “relevant provisions” means sections [F591 52M(2)(a), 53(2)(a), 54(1)(c), 57A(2)(a), 58(1A)(a), 59A(2)(a) and 60C(2)(a)] of this Act.

[F592 (7) In this section, “approved medical practitioner” has the meaning given by section 22 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13).]]

Textual Amendments

F576 S. 61(1)(3): It is provided that for “and 58(1)(a)” there shall be substituted “, 58(1)(a) and 58(1A)(a)” (1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 26(4)(a)(c); S.S.I. 2001/81, art. 3, Sch. 2

F577 Words in s. 61(1) substituted (1.1.1998) by 1997 c. 48, s. 10(2)(a); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

F578 Words in s. 61(1) repealed (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 41(a); S.S.I. 2012/160, art. 3, sch.

F579 Words in s. 61(1) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(10)(a); S.S.I. 2005/161, art. 3

F580 S. 61(1A) inserted (1.1.1998) by 1997 c. 48, s. 10(2)(b); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

F581 Words in s. 61(1A) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(10)(b)(i); S.S.I. 2005/161, art. 3

F582 Words in s. 61(1A) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(10)(b)(ii); S.S.I. 2005/161, art. 3

F583 S. 61(2): It is provided that after “section 58(1)(a)” there shall be inserted “or 58(1A)(a)” (1.4.2002) by 2000 asp 4, s. 88(2), Sch, 5 para. 26(4)(b); S.S.I. 2001/81, art. 3, Sch. 2

F584 Words in s. 61(2) inserted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(10)(c); S.S.I. 2005/161, art. 3

F585 Words in s. 61(2) substituted (1.1.1998) by 1997 c. 48, s. 10(2)(c); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

F586 Words in s. 61(3) substituted (1.1.1998) by 1997 c. 48, s. 10(2)(d); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

F587 Words in s. 61(3) inserted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(10)(d); S.S.I. 2005/161, art. 3

F588 Words in s. 61(3) repealed (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 41(b); S.S.I. 2012/160, art. 3, sch.

F589 Words in s. 61(5) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 41(c); S.S.I. 2012/160, art. 3, sch.

F590 S. 61(6) added (1.1.1998) by 1997 c. 48, s. 10(2)(e); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

F591 Words in s. 61(6) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(10)(e); S.S.I. 2005/161, art. 3

F592 S. 61(7) inserted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), Sch. 4 para. 8(10)(f); S.S.I. 2005/161, art. 3

[F593 61A Transfer of person to suitable hospital S

(1) Subsection (2) below applies in relation to a person who is subject to—

(a) an assessment order,

(b) a treatment order,

(c) an interim compulsion order, or

(d) a temporary compulsion order (see section 54(1)(c) of this Act).

(2) The person's responsible medical officer may transfer the person from the specified hospital to another hospital.

(3) The responsible medical officer may transfer the person only if satisfied that, for the purpose for which the order in question is made—

(a) the specified hospital is not suitable, and

(b) the other hospital is suitable.

(4) In considering the suitability of each hospital, the responsible medical officer is to have particular regard to the specific requirements and needs in the person's case.

(5) As far before the transfer as practicable, the responsible medical officer must—

(a) inform the person of the reason for the transfer,

(b) notify the managers of the specified hospital, and

(c) obtain the consent of—

(i) the managers of the other hospital, and

(ii) the Scottish Ministers.

(6) As soon after the transfer as practicable, the responsible medical officer must notify—

(a) any solicitor known by the officer to be acting for the person, and

(b) the court which made the order in question.

(7) A person may be transferred under subsection (2) above only once with respect to the order in question.

(8) Where a person is transferred under subsection (2) above, the order in question has effect as if the other hospital were the specified hospital.

(9) In this section—

• “managers” has the meaning given by section 329(1) of the Mental Health (Treatment and Care) Scotland) Act 2003,

• “responsible medical officer” has the meaning given by section 329(4) of that Act,

• “specified hospital” means hospital to which the person is admitted by virtue of the order in question.]

Textual Amendments

F593 S. 61A inserted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 46(3), 61(2); S.S.I. 2017/197, art. 2, sch.

[F594 61B Specification of hospital unit S

(1) A reference in this Part to a hospital may be read as a reference to a hospital unit.

(2) In the operation of section 61A of this Act in relation to a transfer from one hospital unit to another within the same hospital—

(a) subsection (2) of that section applies by virtue of subsection (1) of that section where the order in question specifies the hospital unit in which the person is to be detained,

(b) in subsection (5) of that section—

(i) paragraph (b) is to be ignored,

(ii) in paragraph (c)(i), the reference to the managers of the other hospital is to be read as a reference to the managers of the hospital in which the person is detained.

(3) For the purposes of this section, “hospital unit” means any part of a hospital which is treated as a separate unit.]

Textual Amendments

F594 S. 61B inserted (30.6.2017) by virtue of Mental Health (Scotland) Act 2015 (asp 9), ss. 47(2), 61(2); S.S.I. 2017/197, art. 2, sch.

Appeals under Part VI S

62 Appeal by accused [F595 not criminally responsible or unfit for trial] . S

(1) A person may appeal to the [F596 appropriate Appeal Court] against—

(a) a finding made under section 54(1) of this Act that he is [F597 unfit for trial] so that his trial cannot proceed or continue, or the refusal of the court to make such a finding;

(b) a finding under section 55(2) of this Act; or

(c) an order made under section 57(2) of this Act.

(2) An appeal under subsection (1) above shall be—

(a) in writing; and

(b) lodged—

(i) in the case of an appeal under paragraph (a) of that subsection, not later than seven days after the date of the finding or refusal which is the subject of the appeal;

(ii) in the case of an appeal under paragraph (b), or both paragraphs (b) and (c) of that subsection, not later than 28 days after the conclusion of the examination of facts;

(iii) in the case of an appeal under paragraph (c) of that subsection against an order made on an acquittal, by [F598 reason of the special defence set out in section 51A of this Act] , not later than 14 days after the date of the acquittal;

(iv) in the case of an appeal under that paragraph against an order made on a finding under section 55(2), not later than 14 days after the conclusion of the examination of facts,

or within such longer period as the [F599 appropriate Appeal Court] may, on cause shown, allow.

(3) Where the examination of facts was held in connection with proceedings on indictment, subsections (1)(a) and (2)(b)(i) above are without prejudice to section 74(1) of this Act.

(4) Where an appeal is taken under subsection (1) above, the period from the date on which the appeal was lodged until it is withdrawn or disposed of shall not count towards any time limit applying in respect of the case.

(5) An appellant in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the [F600 appropriate Appeal Court] determines that his presence is not practicable or appropriate.

(6) In disposing of an appeal under subsection (1) above the [F601 appropriate Appeal Court] may—

(a) affirm the decision of the court of first instance;

(b) make any other finding or order which that court could have made at the time when it made the finding [F602 , order or other disposal] which is the subject of the appeal; or

(c) remit the case to that court with such directions in the matter as the [F601 appropriate Appeal Court] thinks fit.

(7) Section 60 of this Act shall not apply in relation to any order as respects which a person has a right of appeal under subsection (1)(c) above.

[F603 (8) In this section, “appropriate Appeal Court” means—

(a) in the case of an appeal under subsection (1) against a finding or refusal, or an order made, in proceedings on indictment, the High Court;

(b) in the case of an appeal under subsection (1) against a finding or refusal, or an order made, in summary proceedings, the Sheriff Appeal Court.]

Textual Amendments

F595 Words in s. 62 heading substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 42; S.S.I. 2012/160, art. 3, sch.

F596 Words in s. 62(1) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(2)(a) (with art. 4)

F597 Words in s. 62(1)(a) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 42(a); S.S.I. 2012/160, art. 3, sch.

F598 Words in s. 62(2)(b)(iii) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 42(b); S.S.I. 2012/160, art. 3, sch.

F599 Words in s. 62(2) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(2)(a) (with art. 4)

F600 Words in s. 62(5) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(2)(a) (with art. 4)

F601 Words in s. 62(6) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(2)(a) (with art. 4)

F602 Words in s. 62(6)(b) substituted (1.1.1998) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(7); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

F603 S. 62(8) inserted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(2)(b) (with art. 4)

63 Appeal by prosecutor [F604 where accused found not criminally responsible or unfit for trial]. S

(1) The prosecutor may appeal to the [F605 appropriate Appeal Court] on a point of law against—

(a) a finding under subsection (1) of section 54 of this Act that an accused is [F606 unfit for trial] so that his trial cannot proceed or continue;

[F607 (b) an acquittal by reason of the special defence set out in section 51A of this Act;]

(c) an acquittal under section 55(3) of this Act (whether or not [F608 by reason of the special defence set out in section 51A of this Act]); or

F609 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) An appeal under subsection (1) above shall be—

(a) in writing; and

(b) lodged—

(i) in the case of an appeal under paragraph (a) or (b) of that subsection, not later than seven days after the finding or, as the case may be, the acquittal which is the subject of the appeal;

(ii) in the case of an appeal under paragraph (c) F610 . . .of that subsection, not later than seven days after the conclusion of the examination of facts,

or within such longer period as the [F611 appropriate Appeal Court] may, on cause shown, allow.

(3) Where the examination of facts was held in connection with proceedings on indictment, subsections (1)(a) and (2)(b)(i) above are without prejudice to section 74(1) of this Act.

(4) A respondent in an appeal under this subsection shall be entitled to be present at the hearing of the appeal unless the [F612 appropriate Appeal Court] determines that his presence is not practicable or appropriate.

(5) In disposing of an appeal under subsection (1) above the [F613 appropriate Appeal Court] may—

(a) affirm the decision of the court of first instance;

(b) make any other finding [F614 order or disposal] which that court could have made at the time when it made the finding [F614 or acquittal] which is the subject of the appeal; or

(c) remit the case to that court with such directions in the matter as the [F613 appropriate Appeal Court] thinks fit.

(6) In this section, “the prosecutor” means, in relation to proceedings on indictment, the Lord Advocate.

[F615 (7) In this section, “appropriate Appeal Court” means—

(a) in the case of an appeal under subsection (1) against a finding or an acquittal made in proceedings on indictment, the High Court;

(b) in the case of an appeal under subsection (1) against a finding or an acquittal made in summary proceedings, the Sheriff Appeal Court.]

Textual Amendments

F604 Words in s. 63 heading substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 43; S.S.I. 2012/160, art. 3, sch.

F605 Words in s. 63(1) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(3)(a) (with art. 4)

F606 Words in s. 63(1)(a) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 43(a); S.S.I. 2012/160, art. 3, sch.

F607 S. 63(1)(b) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 43(b); S.S.I. 2012/160, art. 3, sch.

F608 Words in s. 63(1)(c) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 43(c); S.S.I. 2012/160, art. 3, sch.

F609 S. 63(1)(d) repealed (1.1.1998) by 1997 c. 48, s. 62(1)(2), Sch. 1 para. 21(8)(a), Sch. 3; S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

F610 Words in s. 63(2)(b)(ii) repealed (1.1.1998) by 1997 c. 48, s. 62(1)(2), Sch. 1 para. 21(8)(b), Sch. 3; S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

F611 Words in s. 63(2) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(3)(a) (with art. 4)

F612 Words in s. 63(4) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(3)(a) (with art. 4)

F613 Words in s. 63(5) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(3)(a) (with art. 4)

F614 Words in s. 63(5)(b) substituted (1.1.1998) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(8)(c)(i)(ii); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

F615 S. 63(7) inserted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(3)(b) (with art. 4)

PART VII S Solemn Proceedings

The indictment S

64 Prosecution on indictment. S

(1) All prosecutions for the public interest before the High Court or before the sheriff sitting with a jury shall proceed on indictment [F616 at the instance] of Her Majesty’s Advocate.

(2) The indictment may be in the forms—

(a) set out in Schedule 2 to this Act; or

(b) prescribed by Act of Adjournal,

or as nearly as may be in such form.

(3) Indictments in proceedings before the High Court shall be signed by the Lord Advocate or one of his deputes.

(4) Indictments in proceedings before the sheriff sitting with a jury shall be signed by the procurator fiscal, and the words “By Authority of Her Majesty’s Advocate” shall be prefixed to the signature of the procurator fiscal.

(5) The principal record and service copies of indictments and all notices of citation, lists of witnesses, productions and jurors, and all other official documents required in a prosecution on indictment may be either written or printed or partly written and partly printed.

(6) Schedule 3 to this Act shall have effect as regards indictments under this Act.

Textual Amendments

F616 Words in s. 64(1) substituted (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 60(2), 206(1); S.S.I. 2010/413, art. 2, Sch. (with art. 5)

65 Prevention of delay in trials. S

(1) Subject to subsections (2) and (3) below, an accused shall not be tried on indictment for any offence unless

[F617 (a) where an indictment has been served on the accused in respect of the High Court, a preliminary hearing is commenced within the period of 11 months; and

[F618 (aa) where an indictment has been served on the accused in respect of the sheriff court, a first diet is commenced within the period of 11 months;]

(b) in any case, the trial is commenced within the period of 12 months,

of the first appearance of the accused on petition in respect of the offence.]

[F619 (1A) If the preliminary hearing (where subsection (1)(a) above applies) [F620 , the first diet (where subsection (1)(aa) above applies)] or the trial is not so commenced,] the accused

[F621 (a) shall be discharged forthwith from any indictment as respects the offence; and

(b) shall not at any time be proceeded against on indictment as respects the offence]

(2) Nothing in subsection (1) [F622 or (1A)] above shall bar the trial of an accused for whose [F623 apprehension] a warrant has been granted for failure to appear at a diet in the case.

(3) On an application made for the purpose,

[F624 (a) where an indictment has been served on the accused in respect of the High Court, a single judge of that court may, on cause shown, extend [F625 any period] specified in subsection (1) above; or

(b) in any other case, the sheriff may, on cause shown, extend [F625 any period] specified in that subsection.]

[F626 (3A) An application under subsection (3) shall not be made at any time when an appeal made with leave under section 74(1) of this Act has not been disposed of by the High Court.]

(4) Subject to subsections (5) to (9) below, an accused who is committed for any offence until liberated in due course of law shall not be detained by virtue of that committal for a total period of more than—

(a) 80 days, unless within that period the indictment is served on him, which failing he shall be [F627 entitled to be admitted to bail]; or

[F628 (aa) where an indictment has been served on the accused in respect of the High Court—

(i) 110 days, unless a preliminary hearing in respect of the case is commenced within that period, which failing he shall be entitled to be admitted to bail; or

(ii) 140 days, unless the trial of the case is commenced within that period, which failing he shall be entitled to be admitted to bail;]

(b) [F629 where an indictment has been served on the accused in respect of the sheriff court,] [F630 110 days]

[F630 (i) 110 days, unless a first diet in respect of the case is commenced within that period, which failing he shall be entitled to be admitted to bail; or

(ii) 140 days], unless the trial of the case is commenced within that period, which failing he shall be [F631 entitled to be admitted to bail].

[F632 (4A) Where an indictment has been served on the accused in respect of the High Court, subsections (1)(a) and (4)(aa)(i) above shall not apply if the preliminary hearing has been dispensed with under section 72B(1) of this Act.]

[F633 (5) On an application made for the purpose—

(a) in a case where, at the time the application is made, an indictment has not been served on the accused, a single judge of the High Court; or

(b) in any other case, the court specified in the notice served under section 66(6) of this Act,

may, on cause shown, extend any period mentioned in subsection (4) above.

(5A) Before determining an application under subsection (3) or (5) above, the judge or, as the case may be, the court shall give the parties an opportunity to be heard.

(5B) However, where all the parties join in the application, the judge or, as the case may be, the court may determine the application without hearing the parties and, accordingly, may dispense with any hearing previously appointed for the purpose of considering the application.]

F634 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F634 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) The grant or refusal of any application to extend the periods mentioned in this section may be appealed against by note of appeal presented to the High Court; and that Court may affirm, reverse or amend the determination made on such application.

[F635 (8A) Where an accused is, by virtue of subsection (4) above, entitled to be admitted to bail, the accused shall, unless he has been admitted to bail by the Lord Advocate, be brought forthwith before—

(a) in a case where an indictment has not yet been served on the accused, a single judge of the High Court; or

(b) in any other case, the court specified in the notice served under section 66(6) of this Act.

(8B) Where an accused is brought before a judge or court under subsection (8A) above, the judge or, as the case may be, the court shall give the prosecutor an opportunity to make an application under subsection (5) above.

(8C) If the prosecutor does not make such an application or, if such an application is made but is refused, the judge or, as the case may be, the court shall, after giving the prosecutor an opportunity to be heard, admit the accused to bail.

(8D) Where such an application is made but is refused and the prosecutor appeals against the refusal, the accused—

(a) may continue to be detained under the committal warrant for no more than 72 hours from the granting of bail under subsection (8C) above or for such longer period as the High Court may allow; and

(b) on expiry of that period, shall, whether the appeal has been disposed of or not, be released on bail subject to the conditions imposed.]

(9) For the purposes of this section,

[F636 (a) where the accused is cited in accordance with subsection (4)(b) of section 66 of this Act, the indictment shall be deemed to have been served on the accused;

(b) a preliminary hearing shall be taken to commence when it is called; [F637 and]

[F638 (ba) a first diet shall be taken to commence when it is called;]

(c)] a trial shall be taken to commence when the oath is administered to the jury.

(10) In calculating [F639 any period specified in subsection (1) (including any such period as extended)] there shall be left out of account any period during which the accused is [F640 in lawful custody], other than while serving a sentence of imprisonment or detention, in any other part of the United Kingdom or in any of the Channel Islands or the Isle of Man F641 ....

Textual Amendments

F617 S. 65(1)(a)(b)(1A) substituted (1.2.2005) for words by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 6(2), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F618 S. 65(1)(aa) inserted (29.5.2017 for specified purposes) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 79(2)(a), 117(2); S.S.I. 2017/99, art. 3(1)(2) (with art. 6)

F619 S. 65(1)(a)(b)(1A) substituted (1.2.2005) for words by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 6(2), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F620 Words in s. 65(1A) inserted (29.5.2017 for specified purposes) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 79(2)(b), 117(2); S.S.I. 2017/99, art. 3(1)(2) (with art. 6)

F621 S. 65(1)(a)(b) substituted (4.7.1996) for words by 1996 c. 25, s. 73(3) (with s. 78(1))

F622 Words in s. 65(2) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 6(3), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F623 Word in s. 65(2) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 12(1); S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F624 S. 65(3)(a)(b) substituted (1.2.2005) for words by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 6(4), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F625 Words in s. 65(3) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(3)(a), 59(1)

F626 S. 65(3A) inserted (1.8.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(9); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F627 Words in s. 65(4)(a) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 6(5)(a), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F628 S. 65(4)(aa) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 6(5)(b), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F629 Words in s. 65(4)(b) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 6(5)(c)(i), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F630 S. 65(4)(b)(i)(ii) substituted for words (29.5.2017 for specified purposes) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 79(2)(c), 117(2); S.S.I. 2017/99, art. 3(1)(2) (with art. 6)

F631 Words in s. 65(4)(b) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 6(5)(c)(ii), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F632 S. 65(4A) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 6(6), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F633 S. 65(5)-(5B) substituted (1.2.2005) for s. 65(5) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 6(7), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F634 S. 65(6)(7) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 6(8), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F635 S. 65(8A)-(8D) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 6(9), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F636 Words in s. 65(9) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 6(10), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F637 Word in s. 65(9) repealed (29.5.2017 for specified purposes) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 79(2)(d)(i), 117(2); S.S.I. 2017/99, art. 3(1)(2) (with art. 6)

F638 S. 65(9)(ba) inserted (29.5.2017 for specified purposes) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 79(2)(d)(ii), 117(2); S.S.I. 2017/99, art. 3(1)(2) (with art. 6)

F639 Words in s. 65(10) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(3)(b)(i), 59(1) (with s. 56(1)(b)(i))

F640 Words in s. 65(10) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(3)(b)(ii), 59(1) (with s. 56(1)(b)(i))

F641 Words in s. 65(10) repealed (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(3)(b)(iii), 59(1) (with s. 56(1)(b)(i))

Modifications etc. (not altering text)

C34 S. 65 extended (1.10.1997) by 1997 c. 43, s. 41, Sch. 1 Pt. II para. 10(1)(a); S.I. 1997/2200, art. 2(1)(g)

C35 S. 65 modified (1.10.1997) by 1997 c. 43, s. 41, Sch. 1 Pt. II para. 11(1)(a); S.I. 1997/2200, art. 2(1)(g) (subject to transitional provisions in art. 5)

C36 S. 65 applied (with modifications) (1.10.1997) by S.I. 1997/1776, arts. 1, 2, Sch. 1 paras. 5-7; S.I. 1997/2200, art. 2(1)(g) (subject to transitional provisions in art. 5)

C37 S. 65(1) modified (temp.) (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 50-54, 59(1), sch. para. 20(2) (which affecting provision is continued until 30.11.2025 by S.S.I. 2024/322, regs. 1(2), 2(2))

C38 S. 65(4) modified (temp.) (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 50-54, 59(1), sch. para. 22(2) (which affecting provision is continued until 30.11.2025 by S.S.I. 2024/322, regs. 1(2), 2(2))

C39 S. 65(4)(aa)(b) applied (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), ss. 6(7)(8)(a), 17(3); S.S.I. 2011/365, art. 3

C40 S. 65(4A)-(9) applied (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), ss. 6(7)(8)(a), 17(3); S.S.I. 2011/365, art. 3

66 Service and lodging of indictment, etc. S

[F642 (1) This Act shall be sufficient warrant for—

(a) the citation of the accused and witnesses to—

(i) any diet of the High Court to be held on any day, and at any place, the Court is sitting;

(ii) any diet of the sheriff court to be held on any day the court is sitting; or

(iii) any adjournment of a diet specified in sub-paragraph (i) or (ii) above; and

(b) the citation of jurors for any trial to be held—

(i) in the High Court; or

(ii) under solemn procedure in the sheriff court.]

(2) The execution of the citation against an accused, witness or juror shall be in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form.

(3) A witness may be cited by sending the citation to the witness by ordinary or registered post or by the recorded delivery service and a written execution in the form prescribed by Act of Adjournal or as nearly as may be in such form, purporting to be signed by the person who served such citation together with, where appropriate, the relevant post office receipt shall be sufficient evidence of such citation.

[F643 (4) The accused may be cited either—

(a) by being served with a copy of the indictment and of the list of the names and addresses of the witnesses to be adduced by the prosecution [F644 and of the list of productions (if any) to be put in evidence by the prosecution]; or

(b) [F645 if the accused, at the time of citation, is not in custody,] by a constable affixing to the door of the [F646 relevant premises] a notice in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form—

(i) specifying the date on which it was so affixed;

(ii) informing the accused that he may collect a copy of the indictment and of such [F647 lists as are] mentioned in paragraph (a) above from a police station specified in the notice; and

(iii) calling upon him to appear and answer to the indictment at such diet as shall be so specified.

[F648 (4ZA) In subsection (4)(b) above, “the relevant premises” means—

(a) where the accused, at the time of citation, has been admitted to bail, his proper domicile of citation as specified for the purposes of section 25 of this Act; or

(b) in any other case, any premises which the constable reasonably believes to be the accused’s dwelling-house or place of business.]

(4A) Where a date is specified by virtue of sub-paragraph (i) of subsection (4)(b) above, that date shall be deemed the date on which the indictment is served; and the copy of the indictment referred to in sub-paragraph (ii) of that subsection shall, for the purposes of subsections (12) and (13) below be deemed the service copy.

(4B) Paragraphs (a) and (b) of subsection (6) below shall apply for the purpose of specifying a diet by virtue of subsection (4)(b)(iii) above as they apply for the purpose of specifying a diet in any notice under subsection (6).]

[F649 (4C) Where—

(a) the accused is cited in accordance with subsection (4)(b) above; and

(b) the charge in the indictment is of committing [F650 an offence listed in subsection (14A)(b)],

the accused shall, on collecting the indictment, be given a notice containing intimation of the matters specified in subsection (6A)(a) below.]

(5) Except in a case to which section 76 of this Act applies, the prosecutor shall on or before the date of service of the indictment lodge the record copy of the indictment with the clerk of court before which the trial is to take place, together with a copy of the list of witnesses and a copy of the list of productions.

(6) [F651 If the accused is cited by being served with a copy of the indictment, then except where such service is] under section 76(1) of this Act, a notice shall be served on the accused with the indictment calling upon him to appear and answer to the indictment—

(a) where the case is to be tried in the sheriff court

F652 [[F653 (i)] at a first diet not less than 15 clear days after the service of the indictment and not less than 10 clear days before the trial diet [F654 ; and

(ii) at a trial diet not less than 29 clear days after service of the indictment,]] [F653 at a first diet not less than 29 clear days after the service of the indictment,]

[F655 (b) where the indictment is in respect of the High Court, at a diet not less than 29 clear days after the service of the indictment (such a diet being referred to in this Act as a “preliminary hearing”).]

[F656 (6A) Where the charge in the indictment is of committing [F657 an offence listed in subsection (14A)(b)], the notice served under subsection (6) above shall—

(a) contain intimation to the accused—

[F658 (i) that his case at, or for the purposes of, any relevant hearing F659 ... in the course of the proceedings (including at any commissioner proceedings) may be conducted only by a lawyer,]

(ii) that it is, therefore, in his interests, if he has not already done so, to get the professional assistance of a solicitor; and

(iii) that if he does not engage a solicitor for the purposes of [F660 the conduct of his case at or for the purposes of the] [F661 hearing] [F662 (or at any related commissioner proceedings)], the court will do so; F663 . . .

F663 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F664 (6AA) A notice affixed under subsection (4)(b) above or served under subsection (6) above shall, where the accused is a body corporate, also contain intimation to the accused—

(a) where the indictment is in respect of the High Court, that, if it does not appear as mentioned in section 70(4) of this Act or by counsel or a solicitor at the preliminary hearing—

(i) the hearing may proceed; and

(ii) a trial diet may be appointed,

in its absence; and

(b) in any case (whether the indictment is in respect of the High Court or the sheriff court), that if it does not appear as mentioned in paragraph (a) above at the trial diet, the trial may proceed in its absence.]

[F665 (6AB) A notice affixed under subsection (4)(b) or served under subsection (6), where the indictment is in respect of the sheriff court, must contain intimation to the accused that the first diet may proceed and a trial diet may be appointed in the accused's absence.]

(6B) A failure to comply with subsection [F666 (4C), (6A) [F667 or (6AA)] [F667 , (6AA) or (6AB)]] above does not affect the validity or lawfulness of any [F668 notice affixed under subsection (4)(b) above or served under subsection (6) above] or any other element of the proceedings against the accused.]

[F669 (6C) An accused shall be taken to be served with—

(a) the indictment and lists of witnesses and productions; and

(b) the notice referred to in subsection (6) above,

if they are served on the solicitor specified in subsection (6D) below at that solicitor’s place of business.

(6D) The solicitor referred to in subsection (6C) above is any solicitor who—

(a) has notified in writing the procurator fiscal for the district in which the charge against the accused was being investigated that he is engaged by the accused for the purposes of his defence; and

(b) has not informed that procurator fiscal that he has been dismissed by, or has withdrawn from acting for, the accused.

(6E) It is the duty of a solicitor who has, before service of an indictment, notified a procurator fiscal that he is engaged by the accused for the purposes of his defence to inform that procurator fiscal in writing forthwith if he is dismissed by, or withdraws from acting for, the accused.]

(7) [F670 Subject to subsection (4)(b) above,] service of the indictment, lists of witnesses and productions, and any notice or intimation to the accused, and the citation of witnesses, whether for precognition or trial, may be effected by any officer of law.

F671 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) The citation of witnesses may be effected by any officer of law duly authorised; and in any proceedings, the evidence on oath of the officer shall, subject to subsection (10) below, be sufficient evidence of the execution of the citation.

F672 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) No objection to the competency of the officer who served the indictment [F673 , or who executed a citation under subsection (4)(b) above,] to give evidence in respect of such service [F674 or execution] shall be upheld on the ground that his name is not included in the list of witnesses served on the accused.

(12) Any deletion or correction made before service on the record or service copy of an indictment shall be sufficiently authenticated by the initials of the person who has signed, or could by law have signed, the indictment.

(13) Any deletion or correction made on a service copy of an indictment, or on any notice of citation, postponement, adjournment or other notice F675 . . . served on an accused shall be sufficiently authenticated by the initials of any procurator fiscal or of the person serving the same.

(14) Any deletion or correction made on any execution of citation or notice [F676 or] other document [F677 so] served shall be sufficiently authenticated by the initials of the person serving the same.

[F678 (14A) For the purposes of subsections (4C) and (6A)—

(a) “relevant hearing” is to be construed in accordance with section 288C(1A) or (as the case may be) 288DC(4),

(b) the list is—

(i) an offence to which section 288C applies (certain sexual offending),

(ii) an offence to which section 288DC applies (domestic abuse cases).]

[F679 (15) In subsection (6A) above, “commissioner proceedings” means proceedings before a commissioner appointed under section 271I(1) or by virtue of section 272(1)(b) of this Act.]

Textual Amendments

F642 S. 66(1) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 7(2), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F643 S. 66(4)-(4B) substituted (27.6.2003) for s. 66(4) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 61(1)(a), 89; S.S.I. 2003/288, art. 2, Sch.

F644 Words in s. 66(4)(a) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 15(a)(i); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F645 Words in s. 66(4)(b) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 7(3)(a), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F646 Words in s. 66(4)(b) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 7(3)(b), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F647 Words in s. 66(4)(b) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 15(a)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F648 S. 66(4ZA) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 7(4), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F649 S. 66(4C) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 15(b); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F650 Words in s. 66(4C)(b) substituted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(3)(a); S.S.I. 2018/387, reg. 2 (with reg. 7)

F651 Words in s. 66 (6 ) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 61(1)(b)(i), 89; S.S.I. 2003/288, art. 2, Sch.

F652 Words in s. 66(6)(a) renumbered as s. 66(6)(a)(i) (1.2.2005) by virtue of Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 1(1)(a)(i), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F653 Words in s. 66(6)(a) substituted for s. 66(6)(a)(i)(ii) (29.5.2017 for specified purposes) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 79(3), 117(2); S.S.I. 2017/99, art. 3(1)(2) (with arts. 3(3)(4), 6)

F654 S. 66(6)(a)(ii) and word inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 1(1)(a)(ii), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F655 S. 66(6)(b) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 1(1)(b), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F656 S. 66(6A)(6B) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 3, Sch. para. 4; S.S.I. 2002/443, art. 3

F657 Words in s. 66(6A) substituted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(3)(b)(i); S.S.I. 2018/387, reg. 2 (with reg. 7)

F658 S. 66(6A)(a)(i) substituted for s. 66(6A)(a)(zi)(i) (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 44(a); S.S.I. 2011/178, art. 2, sch.

F659 Words in s. 66(6A)(a)(i) repealed (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(3)(b)(ii); S.S.I. 2018/387, reg. 2 (with reg. 7)

F660 Words in s. 66(6A)(a)(iii) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 15(c)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F661 Word in s. 66(6A)(a)(iii) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 44(b); S.S.I. 2011/178, art. 2, sch.

F662 Words in s. 66(6A)(a)(iii) inserted (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 35(1)(a)(ii), 84; S.S.I. 2007/250, art. 3(a)

F663 S. 66(6A)(b) and preceding word repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 1(2), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F664 S. 66(6AA) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 10(5), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F665 S. 66(6AB) inserted (29.5.2017 for specified purposes) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 81(2)(a), 117(2); S.S.I. 2017/99, art. 3(1)(2) (with arts. 3(5), 6)

F666 Words in s. 66(6B) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 15(d)(i); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F667 Words in s. 66(6B) substituted (29.5.2017 for specified purposes) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 81(2)(b), 117(2); S.S.I. 2017/99, art. 3(1)(2) (with art. 6)

F668 Words in s. 66(6B) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 15(d)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F669 S. 66(6C)-(6E) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 7(5), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F670 Words in s. 66 (7 ) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 61(1)(c), 89; S.S.I. 2003/288, art. 2, Sch.

F671 S. 66(8) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 7(6), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F672 S. 66(10) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 15(e); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F673 Words in s. 66(11) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 61(1)(e)(i), 89; S.S.I. 2003/288, art. 2, Sch.

F674 Words in s. 66(11) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 61(1)(e)(ii), 89; S.S.I. 2003/288, art. 2, Sch.

F675 Words in s. 66(13) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 61(1)(f), 89; S.S.I. 2003/288, art. 2, Sch.

F676 Words in s. 66(14) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 61(1)(g)(i), 89; S.S.I. 2003/288, art. 2, Sch.

F677 Words in s. 66(14) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 61(1)(g)(ii), 89; S.S.I. 2003/288, art. 2, Sch.

F678 S. 66(14A) inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(3)(c); S.S.I. 2018/387, reg. 2 (with reg. 7)

F679 S. 66(15) added (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 35(1)(b), 84; S.S.I. 2007/250, art. 3(a)

Modifications etc. (not altering text)

C41 S. 66(6AA) applied (26.12.2023) by Economic Crime and Corporate Transparency Act 2023 (c. 56), ss. 198(1)(2), 219(3)(c)

C42 S. 66(6AA) applied (26.10.2023 for specified purposes, 1.9.2025 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), ss. 203(1)(2), 219(1)(2)(b); S.I. 2025/349, reg. 3

67 Witnesses. S

(1) The list of witnesses shall consist of the names of the witnesses together with an address at which they can be contacted for the purposes of precognition.

(2) It shall not be necessary to include in the list of witnesses the names of any witnesses to the declaration of the accused or the names of any witnesses to prove that an extract conviction applies to the accused, but witnesses may be examined in regard to these matters without previous notice.

(3) Any objection in respect of misnomer or misdescription of—

(a) any person named in the indictment; or

(b) any witness in the list of witnesses,

shall be intimated in writing to the court before which the trial is to take place, to the prosecutor and to any other accused, where the case is to be tried in the sheriff court, at or before the first diet and, where the case is to be tried in the High Court, not less than [F680 seven] clear days before the [F681 preliminary hearing]; and, except on cause shown, no such objection shall be admitted F682 . . . unless so intimated.

(4) Where such intimation has been given or cause is shown and the court is satisfied that the accused making the objection has not been supplied with sufficient information to enable him to identify the person named in the indictment or to find such witness in sufficient time to precognosce him before the trial, the court may grant such remedy by postponement, adjournment or otherwise as appears to it to be appropriate.

[F683 (4A) The prosecutor shall have a duty to cite a witness included in the list only if—

(a) it has been ascertained under—

(i) in the case of proceedings in the High Court, section 72(6)(d); or

(ii) in the case of proceedings in the sheriff court, section 71(1C)(a),

of this Act that the witness is required by the prosecutor or the accused to attend the trial; or

(b) where, in the case of proceedings in the High Court, the preliminary hearing has been dispensed with under subsection (1) of section 72B of this Act, the witness was identified in the application under that subsection as being required by the prosecutor or the accused to attend the trial.]

(5) Without prejudice to—

(a) any enactment or rule of law permitting the prosecutor to examine any witness not included in the list of witnesses; or

(b) subsection (6) below,

in any trial it shall be competent with the leave of the court for the prosecutor to examine any witness or to put in evidence any production not included in the lists lodged by him, provided that written notice, containing in the case of a witness his name and address as mentioned in subsection (1) above, has been given to the accused [F684 by the relevant time.]

[F685 (5A) In subsection (5) above, “the relevant time” means—

(a) where the case is to be tried in the High Court—

(i) not less then seven clear days before the preliminary hearing; or

(ii) such later time, before the jury is sworn to try the case, as the court may, on cause shown, allow;

(b) where the case is to be tried in the sheriff court,]

not less than two clear days before the day on which the jury is sworn to try the case.

(6) It shall be competent for the prosecutor to examine any witness or put in evidence any production included in any list or notice lodged by the accused, and it shall be competent for an accused to examine any witness or put in evidence any production included in any list or notice lodged by the prosecutor or by a co-accused.

Textual Amendments

F680 Word in s. 67(3) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 16(a)(i); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F681 Words in s. 67(3) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 16(a)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F682 Words in s. 67(3) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 16(a)(iii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F683 S. 67(4A) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 16(b); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F684 S. 67: words, including words forming part of a new subsection (5A), expressed to be inserted in subsection (5) (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 16(c); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F685 S. 67: words, including words forming part of a new subsection (5A), expressed to be inserted in subsection (5) (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 16(c); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

67A Failure of witness to attend for, or give evidence on, precognition. S

F686 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F686 S. 67A repealed (4.10.2004) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 17; S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

68 Productions. S

F687 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The accused shall be entitled to see the productions according to the existing law and practice in the office of the sheriff clerk of the district in which the court of the trial diet is situated or, where the trial diet is to be in the High Court in Edinburgh, in the Justiciary Office.

(3) Where a person who has examined a production is adduced to give evidence with regard to it and the production has been lodged [F688 , where the case is to be tried in the sheriff court,] at least eight days before the trial diet [F689 or, where the case is to be tried in the High Court, at least 14 days before the preliminary hearing,] , it shall not be necessary to prove—

(a) that the production was received by him in the condition in which it was taken possession of by the procurator fiscal or the police and returned by him after his examination of it to the procurator fiscal or the police; or

(b) that the production examined by him is that taken possession of by the procurator fiscal or the police,

unless the accused, [F690 where the case is to be tried in the sheriff court,] at least four days before the trial diet [F691 or, where the case is to be tried in the High Court, at least seven days before the preliminary hearing,] , gives in accordance with subsection (4) below written notice that he does not admit that the production was received or returned as aforesaid or, as the case may be, that it is that taken possession of as aforesaid.

(4) The notice mentioned in subsection (3) above shall be given—

(a) where [F692 the case is to be tried in the High Court] , to the Crown Agent; and

(b) where [F693 the case is to be tried in the sheriff court] , to the procurator fiscal.

Textual Amendments

F687 S. 68(1) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 78(2)(c), 117(2); S.S.I. 2016/426, art. 2, sch. (with art. 3)

F688 Words in s. 68(3) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 18(a)(i); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F689 Words in s. 68(3) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 18(a)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F690 Words in s. 68(3) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 18(a)(iii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F691 Words in s. 68(3) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 18(a)(iv); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F692 Words in s. 68(4)(a) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 18(b)(i); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F693 Words in s. 68(4)(b) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 18(b)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

69 Notice of previous convictions. S

(1) No mention shall be made in the indictment of previous convictions, nor shall extracts of previous convictions be included in the list of productions annexed to the indictment.

(2) If the prosecutor intends to place before the court any previous conviction, he shall cause to be served on the accused along with the indictment a notice in the form set out in an Act of Adjournal or as nearly as may be in such form, and any conviction specified in the notice shall be held to apply to the accused unless he gives, in accordance with subsection (3) below, written intimation objecting to such conviction on the ground that it does not apply to him or is otherwise inadmissible.

(3) Intimation objecting to a conviction under subsection (2) above shall be given—

(a) where the accused is [F694 indicted to the High Court, to the Crown Agent not less than seven clear days before the preliminary hearing;]

[F694 (b) where the accused is indicted to the sheriff court, to the procurator fiscal at least five clear days before the first day of the sitting in which the trial diet is to be held.]

.

(4) Where notice is given by the accused under section 76 of this Act of his intention to plead guilty and the prosecutor intends to place before the court any previous conviction, he shall cause to be served on the accused along with the indictment a notice in the form set out in an Act of Adjournal or as nearly as may be in such form.

[F695 (4A) A notice served under subsection (2) or (4) above shall include any details which the prosecutor proposes to provide under section 101(3A) of this Act; and subsection (3) above shall apply in relation to intimation objecting to the provision of such details, on the grounds that they do not apply to the accused or are otherwise inadmissible, as it applies in relation to intimation objecting to a conviction.]

(5) Where the accused pleads guilty at any diet, no objection to any conviction of which notice has been served on him under this section [F696 , or to the provision of such details as are, by virtue of subsection (4A) above, included in a notice so served,] shall be entertained unless he has, at least two clear days before the diet, given intimation to the procurator fiscal of the district to the court of which the accused is cited for the diet.

[F697 (6) This section applies in relation to the alternative disposals mentioned in subsection (7) below as it applies in relation to previous convictions.

(7) Those alternative disposals are—

(a) a—

(i) fixed penalty under section 302(1) of this Act;

(ii) compensation offer under section 302A(1) of this Act,

that has been accepted (or deemed to have been accepted) by the accused in the two years preceding the date of an offence charged;

(b) a work order under section 303ZA(6) of this Act that has been completed in the two years preceding the date of an offence charged.][F698 ;

(c) a restoration notice given under subsection (4) of section 20A of the Nature Conservation (Scotland) Act 2004 (asp 6) in respect of which the accused has given notice of intention to comply under subsection (5) of that section in the two years preceding the date of an offence charged.]

[F699 (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.]

Textual Amendments

F694 S. 69(3)(b) and words substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 19; S.S.I. 2004/405, art. 2(1), Sch. 1 (subject to arts. 3-5)

F695 S. 69(4A) inserted (19.6.2006 for certain purposes and otherwise prosp.) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 1(2), 89, Sch. 1 para. 2(2)(a); S.S.I. 2006/332, art. 2(1)(2)

F696 Words in s. 69(5) inserted (19.6.2006 for certain purposes and otherwise prosp.) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 1(2), 89, Sch. 1 para. 2(2)(b); S.S.I. 2006/332, art. 2(1)(2)

F697 S. 69(6)(7) added (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 53(1), 84; S.S.I. 2008/42, art. 3, Sch.

F698 S. 69(7)(c) and semi colon inserted (29.6.2011) by Wildlife and Natural Environment (Scotland) Act 2011 (asp 6), ss. 40(3)(a), 43(1) (with s. 41(1)); S.S.I. 2011/279, art. 2(1)(q)

F699 S. 69(8) inserted (31.12.2020) by The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 13(5) (with reg. 16)

70 Proceedings against [F700 organisations]. S

(1) This section applies to proceedings on indictment against [F701 an organisation].

[F702 (2) The indictment may be served by delivery of a copy of the indictment together with notice to appear at—

(a) in the case of a body of trustees—

(i) the dwelling-house or place of business of any of the trustees, or

(ii) if the solicitor of the body of trustees is known, the place of business of the solicitor,

[F703 (aa) in the case of a partnership prosecuted by virtue of section 1 of the Partnerships (Prosecution) (Scotland) Act 2013, the dwelling-house or place of business of any of the partners,]

(b) in the case of any other organisation, the registered office or, if there is no registered office or the registered office is not in the United Kingdom, at the principal place of business in the United Kingdom of the organisation.]

(3) Where a letter containing a copy of the indictment has been sent by registered post or by the recorded delivery service to [F704 any place], an acknowledgement or certificate of the delivery of the letter issued by the [F705 postal operator] shall be sufficient evidence of the delivery of the letter at [F706 that place] on the day specified in such acknowledgement or certificate.

(4) [F707 An organisation] may, for the purpose of—

(a) stating objections to the competency or relevancy of the indictment or proceedings; or

(b) tendering a plea of guilty or not guilty; or

(c) making a statement in mitigation of sentence,

appear by a representative F708 ....

(5) Where at the trial diet the [F709 organisation] does not appear as mentioned in subsection (4) above, or by counsel or a solicitor, the court [F710 may—

(a) on the motion of the prosecutor; and

(b) if satisfied as to the matters specified in subsection (5A) below,

proceed with the trial] and dispose of the case in the absence of the [F709 organisation].

[F711 (5A) The matters referred to in subsection (5)(b) above are—

(a) that the [F712 organisation] was cited in accordance with section 66 of this Act as read with subsection (2) above; and

(b) that it is in the interests of justice to proceed as mentioned in subsection (5) above.]

(6) Where [F713 an organisation] is sentenced to a fine, the fine may be recovered in like manner in all respects as if a copy of the sentence certified by the clerk of the court were an extract decree of the Court of Session for the payment of the amount of the fine by [F714 the organisation] to the Queen’s and Lord Treasurer’s Remembrancer.

F715 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F716 (8) In subsection (4) above, “representative” means—

(a) in the case of a body corporate (other than a limited liability partnership), the managing director, secretary or other person in charge, or locally in charge, of its affairs;

(b) in the case of a limited liability partnership, a member of the partnership;

(ba) [F717 in the case of a partnership (other than a limited liability partnership), a partner or other person in charge, or locally in charge, of the partnership's affairs;

(bb) in the case of an unincorporated association, the secretary or other person in charge, or locally in charge, of the association's affairs;

(c) in the case of any other organisation, an employee, officer or official of the organisation duly appointed by it for the purposes of the proceedings.]

(9) For the purposes of subsection (8)(c) above, a statement—

(a) in the case of a body corporate (other than a limited liability partnership), purporting to be signed by an officer of the body;

(b) in the case of a limited liability partnership, purporting to be signed by a member of the partnership,

[F718 (c) in the case of a partnership (other than a limited liability partnership), purporting to be signed by a partner;

(d) in the case of an unincorporated association, purporting to be signed by an officer of the association;

(e) in the case of a government department or a part of the Scottish Administration, purporting to be signed by a senior officer in the department or part,]

to the effect that the person named in the statement has been appointed as the representative for the purposes of any proceedings to which this section applies is sufficient evidence of such appointment.]

Textual Amendments

F700 Word in s. 70 title substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 66(1), 206(1); S.S.I. 2011/178, art. 2, sch.

F701 Words in s. 70(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 66(3), 206(1); S.S.I. 2011/178, art. 2, sch.

F702 S. 70(2) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 66(4), 206(1); S.S.I. 2011/178, art. 2, sch.

F703 S. 70(2)(aa) inserted (26.4.2013) by Partnerships (Prosecution) (Scotland) Act 2013 (c. 21), ss. 6(4), 8(2) (with s. 8(3)(4))

F704 Words in s. 70(3) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 66(5)(a), 206(1); S.S.I. 2011/178, art. 2, sch.

F705 Words in s. 70(3) substituted (26.3.2001) by S.I. 2001/1149, art. 3(1), Sch. 1 para. 104(2) (subject to art. 1(3))

F706 Words in s. 70(3) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 66(5)(b), 206(1); S.S.I. 2011/178, art. 2, sch.

F707 Words in s. 70(4) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 66(6)(a), 206(1); S.S.I. 2011/178, art. 2, sch.

F708 Words in s. 70(4) repealed (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 66(6)(b), 206(1); S.S.I. 2011/178, art. 2, sch.

F709 Word in s. 70(5) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 66(7), 206(1); S.S.I. 2011/178, art. 2, sch.

F710 Words in s. 70(5) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 10(6)(a), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F711 S. 70(5A) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 10(6)(b), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F712 Word in s. 70(5A)(a) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 66(8), 206(1); S.S.I. 2011/178, art. 2, sch.

F713 Words in s. 70(6) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 66(9)(a), 206(1); S.S.I. 2011/178, art. 2, sch.

F714 Words in s. 70(6) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 66(9)(b), 206(1); S.S.I. 2011/178, art. 2, sch.

F715 S. 70(7) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 83(a), 117(2); S.S.I. 2016/426, art. 2, sch.

F716 S. 70(8)(9) substituted (10.3.2008) for s. 70(8) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 28, 84; S.S.I. 2008/42, art. 3, Sch.

F717 S. 70(8)(ba)-(c) substituted for s. 70(8)(c) (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 66(11), 206(1); S.S.I. 2011/178, art. 2, sch.

F718 S. 70(9)(c)-(e) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 66(12), 206(1); S.S.I. 2011/178, art. 2, sch.

Modifications etc. (not altering text)

C43 S. 70 extended (6.1.1997) by S.I. 1996/2827, reg. 70(4)

C44 S. 70 applied (18.6.2001) by 2000 c. 8, s. 403(4)(b); S.I. 2001/1820, art. 2, Sch.

S. 70 applied (with modifications) (16.2.2001) by 2000 c. 41, s. 153(4); S.I. 2001/222, art. 2, Sch. 1 Pt. 1

S. 70 applied (31.5.2002) by Anti-terrorism, Crime and Security Act 2001 (c. 24), s. 69(4)(b); S.I. 2002/1279, art. 2

S. 70 applied (1.4.2005) by Gangmasters (Licensing) Act 2004 (c. 11), ss. {21(4)(b)}, {22(6)(b)}, 29; S.I. 2005/447, art. 1

C45 S. 70 applied (26.7.2007 for certain purposes and 26.7.2008 otherwise) by The Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (S.I. 2007/1895), regs. 1, 6(4)

S. 70 applied (15.12.2007) by The Money Laundering Regulations 2007 (S.I. 2007/2157), reg. 47(8)(b)

S. 70 applied (15.12.2007) by The Transfer of Funds (Information on the Payer) Regulations 2007 (S.I. 2007/3298), reg. 16(8)(b)

S. 70 applied (6.4.2008) by Serious Crime Act 2007 (c. 27), ss. 31(6)(b)(ii), 94; S.I. 2008/755, art. 15(1) (subject to paras. (2)(3))

S. 70 applied (6.4.2008) by Serious Crime Act 2007 (c. 27), ss. 32(5)(b)(ii), 94; S.I. 2008/755, art. 15(1) (subject to paras. (2)(3))

C46 S. 70 applied (20.1.2007, 6.4.2007, 1.10.2007, 6.4.2008, 1.10.2008 for certain purposes and 1.10.2009 otherwise) by Companies Act 2006 (c. 46), ss. 1130(2)(b)(ii), 1300 (with savings in s. 1133); S.I. 2006/3428, art. 3(2) (subject to Sch. 1 (which was revoked (1.10.2009) by S.I. 2008/2860, art. 6 subject to savings in Sch. 2)); S.I. 2007/1093, art. 2(2)(c) (subject to Sch. 1(which was revoked (1.10.2009) by S.I. 2008/2860, art. 6 subject to savings in Sch. 2) ); S.I. 2007/2194, art. 2(1)(l)(3)(h)(subject to art. 12, Sch. 1(which Sch. 1 was revoked (1.10.2009) by S.I. 2008/2860, art. 6 subject to savings in Sch. 2)); S.I. 2007/3495, arts. {3(3)(g)},{5(3)(a)}(subject to arts. 7, 12, Sch. 1 (which Sch. 1 was revoked (1.10.2009) by S.I. 2008/2860, art. 6 subject to savings in Sch. 2)); S.I. 2008/2860, art. 3(s) (with arts. 5, 7, 8, Sch. 2 (as amended by S.I. 2009/1802, art. 18 and S.I. 2009/2476, reg. 2)).

C47 S. 70 applied (20.1.2007 for certain purposes and 6.4.2008 otherwise) by Companies Act 2006 (c. 46), ss. 1257(5), 1300; S.I. 2006/3428, art. 3(3) (subject to arts. 5, 6, Sch. 1 (which Sch. 1 was revoked (1.10.2009) by S.I. 2008/2860, art. 6 subject to savings in Sch. 2)); S.I. 2007/3495, art. 3(1)(u) (with arts. 7, 12, Sch. 4 paras. 37-42)

C48 S. 70 applied (5.2.2008) by The Transport Act 1968 (c. 73), s. 102B(4)(b) (as inserted by The Passenger and Goods Vehicles (Recording Equipment) (Downloading and Retention of Data) Regulations 2008 (S.I. 2008/198), reg. 3)

C49 S. 70 applied (27.11.2008) by Counter-Terrorism Act 2008 (c. 28), ss. 62, 91, 100, Sch. 7 para. 37(2)(b) (with s. 101(2) and Sch. 7 para. 43)

C50 S. 70 applied (9.3.2009) by The Ozone-Depleting Substances (Qualifications) Regulations 2009 (S.I. 2009/ 216), {reg. 10(4)}

S. 70 applied (9.3.2009) by The Ozone-Depleting Substances (Qualifications) Regulations 2009 (S.I. 2009/ 216), {reg. 10(6)(ii)}

C51 S. 70 applied (9.3.2009) by The Fluorinated Greenhouse Gases Regulations 2009 (S.I. 2009/261), regs. 1(1)(b)(4), 52(4)

S. 70 applied (9.3.2009) by The Fluorinated Greenhouse Gases Regulations 2009 (S.I. 2009/261), regs. 1(1)(b)(4), 52(6)(b)(ii)

C52 S. 70 applied (27.4.2009) by The Organic Products Regulations 2009 (S.I. 2009/842), reg. 28(4)(b)

C53 S. 70 applied (1.1.2010) by The Common Agricultural Policy Single Payment and Support Schemes (Integrated Administration and Control System) Regulations 2009 (S.I. 2009/3263), reg. 12(2)(b)(ii)

C54 S. 70 applied (prosp.) by Pensions Act 2008 (c. 30), ss. 47(2)(b)(ii), 149

C55 S. 70 applied (1.5.2009 for certain purposes, otherwise 1.11.2009) by The Payment Services Regulations 2009 (S.I. 2009/209), {regs. 1(2)(b)(xiii)(c), 118(4)(b)}

C56 S. 70 applied (8.3.2010) by The Mercury Export and Data (Enforcement) Regulations 2010 (S.I. 2010/265), reg. 7(7)(b)(ii)

C57 S. 70 applied (6.4.2010) by The Detergents Regulations 2010 (S.I. 2010/740), reg. 24(2)(b)(ii)

C58 S. 70 applied (17.12.2010) by Terrorist Asset-Freezing etc. Act 2010 (c. 38), ss. 38(5)(b)(6), 55(1) (with s. 44)

C59 S. 70 applied (1.7.2011) by Bribery Act 2010 (c. 23), ss. 15(2)(b)(iii), 19(1) (with ss. 16, 19(5)); S.I. 2011/1418, art. 2

C60 S. 70 applied (with modifications) (30.12.2011) by The Wine Regulations 2011 (S.I. 2011/2936), regs. 1(2), 16(2)(c) (with reg. 3(9))

C61 S. 70 applied (30.6.2012) by Pensions Act 2008 (c. 30), ss. 47(2)(b)(ii), 149(1); S.I. 2012/1682, art. 2, Sch. 2

C62 S. 70 applied (1.2.2007 for W. for specified purposes, 2.4.2007 for W. for specified purposes, 1.7.2007 for E. for specified purposes, 22.4.2008 for E.W.S. for specified purposes, 13.12.2008 for W. for specified purposes, 1.8.2012 for N.I. for specified purposes) by Health Act 2006 (c. 28), ss. 77(4)(b), 83(4)(a)(6)(b)(7); S.I. 2007/204, arts. 2(c), 3(c); S.I. 2007/1375, art. 2(b); S.I. 2008/1147, art. 3(b)(c); S.I. 2008/3171, art. 2(b); S.R. 2012/307, art. 2(b)

C63 S. 70 applied (with modifications) (1.3.2014) by The Olive Oil (Marketing Standards) Regulations 2014 (S.I. 2014/195), regs. 1, 15(2)(c)

C64 S. 70 applied (12.12.2014) by The Immigration Act 2014 (Bank Accounts) Regulations 2014 (S.I. 2014/3085), regs. 1, 23(4)(b)

C65 S. 70 applied (7.3.2015 for specified purposes) by The Ozone-Depleting Substances Regulations 2015 (S.I. 2015/168), regs. 1(2), 11(5)(8)(b)(ii) (with regs. 1(3), 2(7), 12(7))

C66 S. 70 applied (19.3.2015 for specified purposes) by The Fluorinated Greenhouse Gases Regulations 2015 (S.I. 2015/310), regs. 1(1)(b)(2), 30(6)(b)(ii)

C67 S. 70 applied (13.4.2015) by The Electricity and Gas (Market Integrity and Transparency) (Criminal Sanctions) Regulations 2015 (S.I. 2015/979), regs. 1, 8(2)(b)

C68 S. 70 applied (with modifications) (16.11.2015) by The Single Common Market Organisation (Emergency Aid for Milk Producers) Regulations 2015 (S.I. 2015/1896), regs. 1(2), 13(2)(c)

C69 S. 70 applied (1.1.2016) by The Small and Medium Sized Business (Finance Platforms) Regulations 2015 (S.I. 2015/1946), regs. 1(2), 35(4)(b)

C70 S. 70 applied (1.1.2016) by The Small and Medium Sized Business (Credit Information) Regulations 2015 (S.I. 2015/1945), regs. 1(2), 38(4)(b)

C71 S. 70 applied (13.7.2016) by The Financial Services and Markets Act 2000 (Transparency of Securities Financing Transactions and of Reuse) Regulations 2016 (S.I. 2016/715), regs. 1(2), 27(4)(b)

C72 S. 70 applied (25.11.2016) by Immigration Act 2016 (c. 19), ss. 30(3)(b)(ii), 94(1); S.I. 2016/1037, reg. 4(c)

C73 S. 70 applied (25.11.2016) by Immigration Act 2016 (c. 19), ss. 29(4)(b)(ii), 94(1); S.I. 2016/1037, reg. 4(c)

C74 S. 70 applied (13.10.2017) by The Payment Services Regulations 2017 (S.I. 2017/752), regs. 1(3)(d), 146(4)(b) (with reg. 3)

C75 S. 70 applied (1.10.2018) by The Nuclear Security (Secretary of State Security Directions) Regulations 2018 (S.I. 2018/408), regs. 1(2), 14(3)(b) (with reg. 7)

C76 S. 70 applied (1.12.2019) by The Invasive Alien Species (Enforcement and Permitting) Order 2019 (S.I. 2019/527), arts. 1(1), 11(2)(b)(ii) (with art. 1(2)(4)) (as amended by S.I. 2019/1213, arts. 1, 2(2))

[F719 70A Defence statements S

(1) This section applies where an indictment is served on an accused.

(2) The accused must lodge a defence statement at least 14 days before the first diet.

(3) The accused must lodge a defence statement at least 14 days before the preliminary hearing.

(4) At least 7 days before the trial diet the accused must—

(a) where there has been no material change in circumstances in relation to the accused's defence since the last defence statement was lodged, lodge a statement stating that fact,

(b) where there has been a material change in circumstances in relation to the accused's defence since the last defence statement was lodged, lodge a defence statement.

(5) If after lodging a statement under subsection (2), (3) or (4) there is a material change in circumstances in relation to the accused's defence, the accused must lodge a defence statement.

(6) Where subsection (5) requires a defence statement to be lodged, it must be lodged before the trial diet begins unless on cause shown the court allows it to be lodged during the trial diet.

(7) The accused may lodge a defence statement—

(a) at any time before the trial diet, or

(b) during the trial diet if the court on cause shown allows it.

(8) As soon as practicable after lodging a defence statement or a statement under subsection (4)(a), the accused must send a copy of the statement to the prosecutor and any co-accused.

(9) In this section, “defence statement” means a statement setting out—

(a) the nature of the accused's defence, including any particular defences on which the accused intends to rely,

(b) any matters of fact on which the accused takes issue with the prosecution and the reason for doing so,

(c) particulars of the matters of fact on which the accused intends to rely for the purposes of the accused's defence,

(d) any point of law which the accused wishes to take and any authority on which the accused intends to rely for that purpose,

(e) by reference to the accused's defence, the nature of any information that the accused requires the prosecutor to disclose, and

(f) the reasons why the accused considers that disclosure by the prosecutor of any such information is necessary.]

Textual Amendments

F719 S. 70A inserted (6.6.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 124(3), 206(1) (with s. 124(1)); S.S.I. 2011/178, art. 2, sch.

Pre-trial proceedings S

71 First diet. S

[F720 (A1) At a first diet [F721 in proceedings to which subsection (B1) below applies], the court shall, F722 . . . ascertain whether [F723 the accused] has engaged a solicitor for the purposes of [F724 the conduct of his case at any relevant hearing in the course of the proceedings].]

[F725 (B1) This subsection applies to proceedings—

(a) in which the accused is charged with a sexual offence to which section 288C of this Act applies,

[F726 (aa) in respect of an offence to which section 288DC of this Act applies (domestic abuse cases),]

(b) to which section 288E of this Act applies, or

(c) in which an order under section 288F(2) of this Act has been made [F727 in relation to any hearing in the course of the proceedings].]

(1) At a first diet the court shall, so far as is reasonably practicable, ascertain F728 ...—

(a) the state of preparation of the prosecutor and of the accused with respect to their cases; and

(b) the extent to which the prosecutor and the accused have complied with the duty under section 257(1) of this Act.

[F729 (1ZA) If a written record has been lodged in accordance with section 71C, the court must have regard to the written record when ascertaining the state of preparation of the parties.]

[F730 (1A) At a first diet, the court shall also—

(a) ascertain whether subsection (1B) below applies to any person who is to give evidence at or for the purposes of [F731 any hearing in the course of the proceedings] or to the accused, and

(b) if so, consider whether it should make an order under section 271A(7) or 271D(2) of this Act in relation to the person or, as the case may be, the accused.

(1B) This subsection applies—

(a) to a person who is to give evidence at or for the purposes of [F732 any hearing in the course of the proceedings] if that person is, or is likely to be, a vulnerable witness,

(b) to the accused if, were he to give evidence at or for the purposes of the trial, he would be, or would be likely to be, a vulnerable witness.]

[F733 (1C) At a first diet, the court—

(a) shall ascertain which of the witnesses included in the list of witnesses are required by the prosecutor or the accused to attend the trial; and

(b) shall, where the accused has been admitted to bail, review the conditions imposed on his bail and may—

(i) after giving the parties an opportunity to be heard; and

(ii) if it considers it appropriate to do so,

fix bail on different conditions.]

(2) In addition to the matters mentioned in subsection (1) [F734 , (1A) and (1C)] above the court shall, at a first diet, consider any [F735 preliminary plea or preliminary issue (within the meanings given to those terms in section 79(2) of this Act)] of which a party has, not less than two clear days before the first diet, given notice to the court and to the other parties.

[F736 (2XA) At a first diet the court shall also dispose of any [F737 vulnerable] witness notice under section 271A(2) or vulnerable witness application under section 271C(2) appointed to be disposed of at that diet.]

[F738 (2YA) At a first diet, the court shall also ascertain whether there is any objection to the admissibility of any evidence which any party wishes to raise despite not having given the notice referred to in subsection (2) above, and—

(a) if so, decide whether to grant leave under section 79(1) of this Act for the objection to be raised; and

(b) if leave is granted, dispose of the objection unless it considers it inappropriate to do so at the first diet.

(2ZA) Where the court, having granted leave for the objection to be raised, decides not to dispose of it at the first diet, the court may—

(a) appoint a further diet to be held before the trial diet for the purpose of disposing of the objection; or

(b) appoint the objection to be disposed of at the trial diet.]

[F739 (2A) At a first diet the court may consider an application for the purposes of subsection (1) of section 275 of this Act.]

(3) At a first diet the court may ask the prosecutor and the accused any question in connection with any matter which it is required to ascertain or consider under subsection (1) [F740 , (1A)][F741 , (1C)][F742 , (2) or (2YA)] above [F743 or which is relevant to an application for the purposes of subsection (1) of the said section 275].

(4) The accused shall attend a first diet of which he has been given notice F744 . . .

(5) A first diet may proceed [F745 , and a trial diet may be appointed,] notwithstanding the absence of the accused.

[F746 (5A) Where, however—

[F747 (a) the proceedings in which the first diet is being held are proceedings to which subsection (B1) above applies;]

(b) the court has not ascertained (whether at that diet or earlier) that he has engaged a solicitor for the purposes of [F748 the conduct of his case at any relevant hearing in the course of the proceeding],

a first diet may not proceed in his absence; and, in such a case, the court shall adjourn the diet and ordain the accused then to attend.]

(6) [F749 Where the accused appears at the first diet, the accused is to be required at that diet] to state how he pleads to the indictment, and section 77 of this Act shall apply where he tenders a plea of guilty.

F750 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F751 (7A) In subsections (A1) and (5A)(b), “relevant hearing” means—

(a) in relation to proceedings mentioned in paragraph (a) of subsection (B1), any hearing at, or for the purposes of, which a witness is to give evidence,

(b) in relation to proceedings mentioned in paragraph (b) of that subsection, a hearing referred to in section 288E(2A),

(c) in relation to proceedings mentioned in paragraph (c) of that subsection, a hearing in respect of which an order is made under section 288F.]

F752 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F752 (8A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) In this section [F753 and section 71B] “the court” means the sheriff court.

Textual Amendments

F720 S. 71(A1) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 3, Sch. para. 5(a); S.S.I. 2002/443, art. 3

F721 Words in s. 71(A1) inserted (1.4.2005 for certain purposes and 1.4.2006 for further certain purposes and otherwise prosp.) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 7(1)(a)(i), 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1))

F722 Words in s. 71(A1) repealed (1.4.2005 for certain purposes and 1.4.2006 for further certain purposes and otherwise prosp.) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 7(1)(a)(ii), 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1))

F723 Word in s. 71(A1) substituted (1.4.2005 for certain purposes and 1.4.2006 for further certain purposes and otherwise prosp.) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 7(1)(a)(iii), 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1))

F724 Words in s. 71(A1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 45(a); S.S.I. 2011/178, art. 2, sch.

F725 S. 71(B1) inserted (1.4.2005 for certain purposes and 1.4.2006 for further certain purposes and otherwise prosp.) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 7(1)(b), 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1))

F726 S. 71(B1)(aa) inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(4); S.S.I. 2018/387, reg. 2 (with reg. 7)

F727 Words in s. 71(B1)(c) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 45(b); S.S.I. 2011/178, art. 2, sch.

F728 Words in s. 71(1) repealed (31.7.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 81(3)(a), 117(2); S.S.I. 2017/99, art. 4(1) (with arts. 4(2), 6)

F729 S. 71(1ZA) inserted (29.5.2017 for specified purposes) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 80(2), 117(2); S.S.I. 2017/99, art. 3(1)(2) (with art. 6)

F730 S. 71(1A)(1B) inserted (1.4.2005 and 1.4.2006 for certain purposes, otherwise 1.4.2008) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 2(1)(a), 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art 4(1)); S.S.I. 2008/57, art. 2 (with art. 3)

F731 Words in s. 71(1A)(a) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 45(c); S.S.I. 2011/178, art. 2, sch.

F732 Words in s. 71(1B)(a) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 45(d); S.S.I. 2011/178, art. 2, sch.

F733 S. 71(1C) inserted after (1B) (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 19(2), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F734 Words in s. 71(2) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 19(3), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F735 Words in s. 71(2) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 20(a); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F736 S. 71(2XA) inserted (1.2.2005 for certain purposes in accordance with art. 1(3) of the amending S.S.I.) by The Criminal Procedure (Amendment) (Scotland) Act 2004 (Incidental, Supplemental and Consequential Provisions) Order 2005 (S.S.I. 2005/40), art. 4(3); S.S.I. 2004/405, art. 2, Schs. 1, 2

F737 Word in s. 71(2XA) substituted (1.9.2015) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 11(1), 34; S.S.I. 2015/200, art. 2(2), sch. (with arts. 1(3), 4)

F738 S. 71(2YA)(2ZA) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 14(1)(a), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F739 S. 71(2A) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 8(2)(a); S.S.I. 2002/443, art. 3 (with art. 4(5))

F740 Words in s. 71(3) inserted (1.4.2005 and 1.4.2006 for certain purposes and otherwise 1.4.2008) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 2(1)(c), 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1)); S.S.I. 2008/57, art. 2 (with art. 3)

F741 Words in s. 71(3) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 19(4), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F742 Words in s. 71(3) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 14(1)(b), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F743 Words in s. 71(3) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 8(2)(b); S.S.I. 2002/443, art. 3 (with art. 4(5))

F744 Words in s. 71(4) repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 12(2); S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F745 Words in s. 71(5) inserted (31.7.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 81(3)(b), 117(2); S.S.I. 2017/99, art. 4(1) (with arts. 4(2), 6)

F746 S. 71(5A) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 3, Sch. para. 5(b); S.S.I. 2002/443, art. 3

F747 S. 71(5A)(a) substituted (1.4.2005 for certain purposes and 1.4.2006 for further certain purposes and otherwise prosp.) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 7(1)(c), 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1))

F748 Words in s. 71(5A)(b) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 45(e); S.S.I. 2011/178, art. 2, sch.

F749 Words in s. 71(6) substituted (31.7.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 81(3)(c), 117(2); S.S.I. 2017/99, art. 4(1) (with arts. 4(2), 6)

F750 S. 71(7) repealed (31.7.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 81(3)(d), 117(2); S.S.I. 2017/99, art. 4(1) (with arts. 4(2), 6)

F751 S. 71(7A) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 45(f); S.S.I. 2011/178, art. 2, sch.

F752 S. 71(8)(8A) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 20(b); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F753 Words in s. 71(9) inserted (31.7.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 81(3)(e), 117(2); S.S.I. 2017/99, art. 4(1) (with arts. 4(2), 6)

[F754 71A Further pre-trial diet: dismissal or withdrawal of solicitor representing accused in case of sexual offence S

F755 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F754 S. 71A inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 3, Sch. para. 6; S.S.I. 2002/443, art. 3

F755 S. 71A repealed (4.12.2004) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 21; S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

[F756 71B First diet: appointment of trial diet S

(1) At a first diet, unless a plea of guilty is tendered and accepted, the court must—

(a) after complying with section 71, and

(b) subject to subsections (3) to (7),

appoint a trial diet.

(2) Where a trial diet is appointed at a first diet, the accused must appear at the trial diet and answer the indictment.

(3) In appointing a trial diet under subsection (1), in any case in which the [F757 period specified in section 65(1)(b)] applies (whether or not the [F758 period specified in section 65(4)(b)(ii)] also applies in the case)—

(a) if the court considers that the case would be likely to be ready to proceed to trial within that period, it must, subject to subsections (5) to (7), appoint a trial diet for a date within that period, or

(b) if the court considers that the case would not be likely to be so ready, it must give the prosecutor an opportunity to make an application to the court under section 65(3) for an extension of the [F757 period specified in section 65(1)(b)].

(4) Where paragraph (b) of subsection (3) applies—

(a) if such an application as is mentioned in that paragraph is made and granted, the court must, subject to subsections (5) to (7), appoint a trial diet for a date within the [F759 period specified in section 65(1)(b)] as extended, or

(b) if no such application is made or if one is made but is refused by the court—

(i) the court may desert the first diet simpliciter or pro loco et tempore, and

(ii) where the accused is committed until liberated in due course of law, the accused must be liberated forthwith.

(5) Subsection (6) applies in any case in which—

(a) the [F760 period specified in section 65(4)(b)(ii)] as well as the 12 month period applies, and

(b) the court is required, by virtue of subsection (3)(a) or (4)(a) to appoint a trial diet within the [F761 period specified in section 65(1)(b)].

(6) In such a case—

(a) if the court considers that the case would be likely to be ready to proceed to trial within the [F762 period specified in section 65(4)(b)(ii)], it must appoint a trial diet for a date within that period as well as within the [F763 period specified in section 65(1)(b)], or

(b) if the court considers that the case would not be likely to be so ready, it must give the prosecutor an opportunity to make an application under section 65(5) for an extension of the 140 day period.

(7) Where paragraph (b) of subsection (6) applies—

(a) if such an application as is mentioned in that paragraph is made and granted, the court must appoint a trial diet for a date within the [F764 period specified in section 65(4)(b)(ii)] as extended as well as within the [F765 period specified in section 65(1)(b)],

(b) if no such application is made or if one is made but is refused by the court—

(i) the court must proceed under subsection (3)(a) or (as the case may be) (4)(a) to appoint a trial diet for a date within the 12 month period, and

(ii) the accused is then entitled to be admitted to bail.

(8) Where an accused is, by virtue of subsection (7)(b)(ii), entitled to be admitted to bail, the court must, before admitting the accused to bail, give the prosecutor an opportunity to be heard.

(9) On appointing a trial diet under this section in a case where the accused has been admitted to bail (otherwise than by virtue of subsection (7)(b)(ii)), the court, after giving the parties an opportunity to be heard—

(a) must review the conditions imposed on the accused's bail, and

(b) having done so, may, if it considers it appropriate to do so, fix bail on different conditions.

[F766 (10) In this section a reference to the period specified in section 65(1)(b) or section 65(4)(b)(ii) is to be construed as including that period as extended.]]

Textual Amendments

F756 S. 71B inserted (31.7.2017) after s. 71 by virtue of Criminal Justice (Scotland) Act 2016 (asp 1), ss. 81(4), 117(2); S.S.I. 2017/99, art. 4(1) (with arts. 4(2), 6)

F757 Words in s. 71B(3) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(4)(a)(i), 59(1)

F758 Words in s. 71B(3) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(4)(a)(ii), 59(1)

F759 Words in s. 71B(4) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(4)(b), 59(1)

F760 Words in s. 71B(5) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(4)(c)(i), 59(1)

F761 Words in s. 71B(5) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(4)(c)(ii), 59(1)

F762 Words in s. 71B(6) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(4)(d)(i), 59(1)

F763 Words in s. 71B(6) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(4)(d)(ii), 59(1)

F764 Words in s. 71B(7) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(4)(e)(i), 59(1)

F765 Words in s. 71B(7) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(4)(e)(ii), 59(1)

F766 S. 71B(10) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(4)(f), 59(1)

[F767 71C Written record of state of preparation: sheriff court S

(1) Subsection (2) applies where—

(a) the accused is indicted to the sheriff court, and

(b) a solicitor—

(i) has notified the court under section 72F(1) that the solicitor has been engaged by the accused for the purposes of conducting the accused's defence, and

(ii) has not subsequently been dismissed by the accused or withdrawn.

(2) The prosecutor and the accused's legal representative must, within the period described in subsection (3), communicate with each other and jointly prepare a written record of their state of preparation with respect to their cases (referred to in this section as “the written record”).

(3) The period referred to in subsection (2) begins on the day the accused is served with an indictment and expires at the end of the day falling 14 days later.

(4) The written record must—

(a) be in such form, or as nearly as may be in such form,

(b) contain such information, and

(c) be lodged in such manner,

as may be prescribed by act of adjournal.

(5) The written record must state the manner in which the communication required by subsection (2) was conducted (for example, by telephone, email or a meeting in person).

(6) In subsection (2), “the accused's legal representative” means—

(a) the solicitor referred to in subsection (1), or

(b) where the solicitor has instructed counsel for the purposes of the conduct of the accused's case, either the solicitor or that counsel, or both of them.

(7) In subsection (6)(b), “counsel” includes a solicitor who has a right of audience in the High Court of Justiciary under section 25A of the Solicitors (Scotland) Act 1980.]

Textual Amendments

F767 S. 71C inserted (29.5.2017 for specified purposes) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 80(3), 117(2); S.S.I. 2017/99, art. 3(1)(2) (with art. 6)

[F768 72 Preliminary hearing: procedure up to appointment of trial diet S

(1) A preliminary hearing shall be conducted in accordance with this section and section 72A.

(2) The court shall—

(a) where the accused is charged with an offence to which section 288C [F769 or 288DC] of this Act applies; or

(b) in any case—

(i) in respect of which section 288E of this Act applies; or

(ii) in which an order has been made under section 288F(2) of this Act,

before taking any further step under this section, ascertain whether the accused has engaged a solicitor for the purposes of the conduct of his case at or for the purposes of the preliminary hearing.

(3) After complying with subsection (2) above, the court shall dispose of any preliminary pleas (within the meaning of section 79(2)(a) of this Act) of which a party has given notice not less than 7 clear days before the preliminary hearing to the court and to the other parties.

(4) After disposing of any preliminary pleas under subsection (3) above, the court shall require the accused to state how he pleads to the indictment.

(5) If the accused tenders a plea of guilty, section 77 of this Act shall apply.

(6) After the accused has stated how he pleads to the indictment, the court shall, unless a plea of guilty is tendered and accepted—

(a) in any case—

(i) where the accused is charged with an offence to which section 288C [F770 or 288DC] of this Act applies;

(ii) in respect of which section 288E of this Act applies; or

(iii) in which an order has been made under section 288F(2) of this Act,

ascertain whether the accused has engaged a solicitor for the purposes of his defence at the trial;

(b) unless it considers it inappropriate to do so at the preliminary hearing, dispose of—

(i) any preliminary issues (within the meaning of section 79(2)(b) of this Act) of which a party has given notice not less than 7 clear days before the preliminary hearing to the court and to the other parties;

(ii) any [F771 vulnerable] witness notice under section 271A(2) or vulnerable witness application under section 271C(2) appointed to be disposed of at the preliminary hearing;

(iii) subject to subsection (8) below, any application under section 275(1) or 288F(2) of this Act made before the preliminary hearing [F772 (to the extent that the application has not already been disposed of)]; and

(iv) any other matter which, in the opinion of the court, could be disposed of with advantage before the trial;

(c) ascertain whether there is any objection to the admissibility of any evidence which any party wishes to raise despite not having given the notice referred to in paragraph (b)(i) above, and—

(i) if so, decide whether to grant leave under section 79(1) of this Act for the objection to be raised; and

(ii) if leave is granted, dispose of the objection unless it considers it inappropriate to do so at the preliminary hearing;

(d) ascertain which of the witnesses included in the list of witnesses are required by the prosecutor or the accused to attend the trial;

(e) ascertain whether subsection (7) below applies to any person who is to give evidence at or for the purposes of the trial or to the accused and, if so, consider whether it should make an order under section 271A(7) or 271D(2) of this Act in relation to the person or, as the case may be, the accused; and

(f) ascertain, so far as is reasonably practicable—

(i) the state of preparation of the prosecutor and the accused with respect to their cases; and

(ii) the extent to which the prosecutor and the accused have complied with the duty under section 257(1) of this Act.

(7) This subsection applies—

(a) to a person who is to give evidence at or for the purposes of the trial if that person is, or is likely to be, a vulnerable witness;

(b) to the accused if, were he to give evidence at or for the purposes of the trial, he would be, or would be likely to be, a vulnerable witness.

(8) Where any application or notice such as is mentioned in subsection (6)(b)(iii) above is required by the provision under which it is made or lodged, or by any other provision of this Act, to be made or lodged by a certain time, the court—

(a) shall not be required under that subsection to dispose of it unless it has been made or lodged by that time; but

(b) shall have power to dispose of it to the extent that the provision under which it was made, or any other provision of this Act, allows it to be disposed of notwithstanding that it was not made or lodged in time.

(9) Where the court decides not to dispose of any preliminary issue, application, notice, objection or other matter referred to in subsection (6)(b) or (c) above at the preliminary hearing, it may—

(a) appoint a further diet, to be held before the trial diet appointed under section 72A of this Act, for the purpose of disposing of the issue, application, notice, objection or matter; or

(b) appoint the issue, application, notice, objection or other matter to be disposed of at the trial diet.]

Textual Amendments

F768 Ss. 72-72D substituted for ss. 72-73A (1.2.2005, 1.4.2005, 1.4.2006, 1.4.2007 and 2.7.2007 for certain purposes, otherwise 1.4.2008) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 1(3), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5); S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1)); S.S.I. 2007/101, art. 2, Sch. (with art. 4); S.S.I. 2007/329, art. 2, Sch. (with art. 4)); S.S.I. 2008/57, art. 2 (with art. 3)

F769 Words in s. 72(2)(a) inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(5)(a); S.S.I. 2018/387, reg. 2 (with reg. 7)

F770 Words in s. 72(6)(a)(i) inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(5)(b); S.S.I. 2018/387, reg. 2 (with reg. 7)

F771 Word in s. 72(6)(b)(ii) substituted (1.9.2015) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 11(2), 34; S.S.I. 2015/200, art. 2(2), sch. (with arts. 1(3), 4)

F772 Words in s. 72(6)(b)(iii) inserted (20.1.2020) by Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 (asp 8), ss. 5(7), 12(2); S.S.I. 2019/392, reg. 2

[F773 [F774 72A Preliminary hearing: appointment of trial diet S

(1) [F775 In any case in which subsection (6) of section 72] applies, the court shall, at the preliminary hearing—

(a) after complying with that subsection;

(b) having regard to earlier proceedings at the preliminary hearing; and

(c) subject to subsections (3) to (7) below,

appoint a trial diet.

F776 (1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In appointing a trial diet under subsection (1) above, the court may, if satisfied that it is appropriate to do so, indicate that the diet is to be a floating diet for the purposes of section 83A of this Act.

(3) In any case in which the [F777 period specified in section 65(1)(b)] applies (whether or not the [F778 period specified in section 65(4)(aa)(ii)] also applies in the case)—

(a) if the court considers that the case would be likely to be ready to proceed to trial within that period, it shall, subject to subsections (5) to (7) below, appoint a trial diet for a date within that period; or

(b) if the court considers that the case would not be likely to be so ready, it shall give the prosecutor an opportunity to make an application to the court under section 65(3) of this Act for an extension of the [F777 period specified in section 65(1)(b)].

(4) Where paragraph (b) of subsection (3) above applies—

(a) if such an application as is mentioned in that paragraph is made and granted, the court shall, subject to subsections (5) to (7) below, appoint a trial diet for a date within the [F779 period specified in section 65(1)(b)] as extended; or

(b) if no such application is made or if one is made but is refused by the court—

(i) the court may desert the preliminary hearing simpliciter or pro loco et tempore; and

(ii) where the accused is committed until liberated in due course of law, he shall be liberated forthwith.

(5) Subsection (6) below applies in any case in which—

(a) the [F780 period specified in section 65(4)(aa)(ii)] as well as the [F781 period specified in section 65(1)(b)] applies; and

(b) the court is required, by virtue of subsection (3)(a) or (4)(a) above, to appoint a trial diet within the [F781 period specified in section 65(1)(b)].

(6) In such a case—

(a) if the court considers that the case would be likely to be ready to proceed to trial within the [F782 period specified in section 65(4)(aa)(ii)], it shall appoint a trial diet for a date within that period as well as within the [F783 period specified in section 65(1)(b)]; or

(b) if the court considers that the case would not be likely to be so ready, it shall give the prosecutor an opportunity to make an application under section 65(5) of this Act for an extension of the 140 day period.

(7) Where paragraph (b) of subsection (6) above applies—

(a) if such an application as is mentioned in that paragraph is made and granted, the court shall appoint a trial diet for a date within the [F784 period specified in section 65(4)(aa)(ii)] as extended as well as within the [F785 period specified in section 65(1)(b)];

(b) if no such application is made or if one is made but is refused by the court—

(i) the court shall proceed under subsection (3)(a) or, as the case may be, (4)(a) above to appoint a trial diet for a date within the [F785 period specified in section 65(1)(b)]; and

(ii) the accused shall then be entitled to be admitted to bail.

(8) Where an accused is, by virtue of subsection (7)(b)(ii) above, entitled to be admitted to bail, the court shall, before admitting him to bail, give the prosecutor an opportunity to be heard.

(9) On appointing a trial diet under this section in a case where the accused has been admitted to bail (otherwise than by virtue of subsection (7)(b)(ii) above), the court, after giving the parties an opportunity to be heard—

(a) shall review the conditions imposed on his bail; and

(b) having done so, may, if it considers it appropriate to do so, fix bail on different conditions.

[F786 (10) In this section a reference to the period specified in section 65(1)(b) or section 65(4)(aa)(ii) is to be construed as including that period as extended.]]]

Textual Amendments

F773 S. 72A inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 3, Sch. para. 7; S.S.I. 2002/443, art. 3

F774 Ss. 72-72D substituted for ss. 72-73A (1.2.2005, 1.4.2005, 1.4.2006, 1.4.2007 and 2.7.2007 for certain purposes, otherwise 1.4.2008) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 1(3), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5); S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1)); S.S.I. 2007/101, art. 2, Sch. (with art. 4); S.S.I. 2007/329, art. 2, Sch. (with art. 4)); S.S.I. 2008/57, art. 2 (with art. 3)

F775 Words in s. 72A(1) substituted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 82(a), 117(2); S.S.I. 2016/426, art. 2, sch.

F776 S. 72A(1A) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 82(b), 117(2); S.S.I. 2016/426, art. 2, sch.

F777 Words in s. 72A(3) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(5)(a)(i), 59(1)

F778 Words in s. 72A(3) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(5)(a)(ii), 59(1)

F779 Words in s. 72A(4) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(5)(b), 59(1)

F780 Words in s. 72A(5) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(5)(c)(i), 59(1)

F781 Words in s. 72A(5) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(5)(c)(ii), 59(1)

F782 Words in s. 72A(6) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(5)(d)(i), 59(1)

F783 Words in s. 72A(6) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(5)(d)(ii), 59(1)

F784 Words in s. 72A(7) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(5)(e)(i), 59(1)

F785 Words in s. 72A(7) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(5)(e)(ii), 59(1)

F786 s. 72A(10) substituted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 55(5)(f), 59(1)

[F787 72B Power to dispense with preliminary hearing S

(1) The court may, on an application made to it jointly by the parties, dispense with a preliminary hearing and appoint a trial diet if the court is satisfied on the basis of the application that—

(a) the state of preparation of the prosecutor and the accused with respect to their cases is such that the case is likely to be ready to proceed to trial on the date to be appointed for the trial diet;

(b) there are no preliminary pleas, preliminary issues or other matters which require to be, or could with advantage be, disposed of before the trial; and

(c) there are no persons to whom section 72(7) of this Act applies.

(2) An application under subsection (1) above shall identify which (if any) of the witnesses included in the list of witnesses are required by the prosecutor or the accused to attend the trial.

(3) Where a trial diet is to be appointed under subsection (1) above, it shall be appointed in accordance with such procedure as may be prescribed by Act of Adjournal.

(4) Where a trial diet is appointed under subsection (1) above, the accused shall appear at the diet and answer the indictment.

(5) The fact that a preliminary hearing in any case has been dispensed with under subsection (1) above shall not affect the calculation in that case of any time limit for the giving of any notice or the doing of any other thing under this Act, being a time limit fixed by reference to the preliminary hearing.

(6) Accordingly, any such time limit shall have effect in any such case as if it were fixed by reference to the date on which the preliminary hearing would have been held if it had not been dispensed with.

Textual Amendments

F787 Ss. 72-72D substituted for ss. 72-73A (1.2.2005, 1.4.2005, 1.4.2006, 1.4.2007 and 2.7.2007 for certain purposes, otherwise 1.4.2008) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 1(3), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5); S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1)); S.S.I. 2007/101, art. 2, Sch. (with art. 4); S.S.I. 2007/329, art. 2, Sch. (with art. 4)); S.S.I. 2008/57, art. 2 (with art. 3)

72C Procedure where preliminary hearing does not proceed S

(1) The prosecutor shall not raise a fresh libel in any case in which the court has deserted a preliminary hearing simpliciter unless the court’s decision has been reversed on appeal.

(2) Where a preliminary hearing is deserted pro loco et tempore, the court may appoint a further preliminary hearing for a later date and the accused shall appear and answer the indictment at that hearing.

(3) Subsection (4) below applies where, at a preliminary hearing—

(a) the hearing has been deserted pro loco et tempore for any reason and no further preliminary hearing has been appointed under subsection (2) above; or

(b) the indictment is for any reason not proceeded with and the hearing has not been adjourned or postponed.

(4) Where this subsection applies, the prosecutor may, at any time within the period of two months after the relevant date, give notice to the accused on another copy of the indictment to appear and answer the indictment—

(a) at a further preliminary hearing in the High Court not less than seven clear days after the date of service of the notice; or

[F788 (b) at—

(i) a first diet not less than 15 clear days after the service of the notice and not less than 10 clear days before the trial diet; and

(ii) a trial diet not less than 29 clear days after the service of the notice,

in the sheriff court where the charge is one that can lawfully be tried in that court.]

[F788 (b) where the charge is one that can lawfully be tried in the sheriff court, at a first diet in that court not less than 29 clear days after the service of the notice.]

(5) Where notice is given to the accused under subsection (4)(b) above, then for the purposes of section 65(4) of this Act—

(a) the giving of the notice shall be taken to be service of an indictment in respect of the sheriff court; and

(b) the previous service of the indictment in respect of the High Court shall be disregarded.

(6) In subsection (4) above, “the relevant date” means—

(a) where paragraph (a) of subsection (3) above applies, the date on which the diet was deserted as mentioned in that paragraph; or

(b) where paragraph (b) of that subsection applies, the date of the preliminary hearing referred to in that paragraph.

(7) A notice referred to in subsection (4) above shall be in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form.

Textual Amendments

F787 Ss. 72-72D substituted for ss. 72-73A (1.2.2005, 1.4.2005, 1.4.2006, 1.4.2007 and 2.7.2007 for certain purposes, otherwise 1.4.2008) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 1(3), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5); S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1)); S.S.I. 2007/101, art. 2, Sch. (with art. 4); S.S.I. 2007/329, art. 2, Sch. (with art. 4)); S.S.I. 2008/57, art. 2 (with art. 3)

F788 S. 72C(4)(b) substituted (29.5.2017 for specified purposes) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 79(4), 117(2); S.S.I. 2017/99, art. 3(1)(2) (with art. 3(3)(4), 6)

72D Preliminary hearing: further provision S

(1) The court may, on cause shown, allow a preliminary hearing to proceed notwithstanding the absence of the accused.

(2) Where—

(a) the accused is a body corporate;

(b) it fails to appear at a preliminary hearing;

(c) the court allows the hearing to proceed in its absence under subsection (1) above; and

(d) no plea is entered on its behalf at the hearing,

it shall be treated for the purposes of proceedings at the preliminary hearing as having pled not guilty.

(3) Where, at a preliminary hearing, a trial diet is appointed, the accused shall appear at the trial diet and answer the indictment.

(4) At a preliminary hearing, the court—

(a) shall take into account any written record lodged under section 72E of this Act; and

(b) may ask the prosecutor and the accused any question in connection with any matter which it is required to dispose of or ascertain under section 72 of this Act.

(5) The proceedings at a preliminary hearing shall be recorded by means of shorthand notes or by mechanical means.

(6) Subsections (2) to (4) of section 93 of this Act shall apply for the purposes of the recording of proceedings at a preliminary hearing in accordance with subsection (5) above as they apply for the purposes of the recording of proceedings at the trial in accordance with subsection (1) of that section.

(7) The Clerk of Justiciary shall prepare, in such form and manner as may be prescribed by Act of Adjournal, a minute of proceedings at a preliminary hearing, which shall record, in particular, whether any preliminary pleas or issues were disposed of and, if so, how they were disposed of.

(8) In this section, references to a preliminary hearing include an adjourned preliminary hearing.

(9) In this section and sections 72 to 72C, “the court” means the High Court.]

Textual Amendments

F787 Ss. 72-72D substituted for ss. 72-73A (1.2.2005, 1.4.2005, 1.4.2006, 1.4.2007 and 2.7.2007 for certain purposes, otherwise 1.4.2008) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 1(3), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5); S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1)); S.S.I. 2007/101, art. 2, Sch. (with art. 4); S.S.I. 2007/329, art. 2, Sch. (with art. 4)); S.S.I. 2008/57, art. 2 (with art. 3)

Modifications etc. (not altering text)

C77 S. 72D(2) applied (26.12.2023) by Economic Crime and Corporate Transparency Act 2023 (c. 56), ss. 198(1)(2), 219(3)(c)

C78 S. 72D(2) applied (26.10.2023 for specified purposes, 1.9.2025 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), ss. 203(1)(2), 219(1)(2)(b); S.I. 2025/349, reg. 3

[F789 72E Written record of state of preparation in certain cases S

(1) This section applies where, in any proceedings in the High Court, a solicitor has notified the Court under section 72F(1) of this Act that he has been engaged by the accused for the purposes of the conduct of his case at the preliminary hearing.

(2) The prosecutor and the accused’s legal representative shall, not less than two days before the preliminary hearing—

(a) communicate with each other with a view to jointly preparing a written record of their state of preparation with respect to their cases (referred to in this section as “the written record”); and

(b) lodge the written record with the Clerk of Justiciary.

(3) The High Court may, on cause shown, allow the written record to be lodged after the time referred to in subsection (2) above.

(4) The written record shall—

(a) be in such form, or as nearly as may be in such form;

(b) contain such information; and

(c) be lodged in such manner,

as may be prescribed by Act of Adjournal.

(5) The written record may contain, in addition to the information required by virtue of subsection (4)(b) above, such other information as the prosecutor and the accused’s legal representative consider appropriate.

(6) In this section—

• “the accused’s legal representative” means—

  (a)

  the solicitor referred to in subsection (1) above; or

  (b)

  where the solicitor has instructed counsel for the purposes of the conduct of the accused’s case at the preliminary hearing, either the solicitor or that counsel, or both of them; and

• “counsel” includes a solicitor who has a right of audience in the High Court of Justiciary under section 25A (rights of audience in various courts including the High Court of Justiciary) of the Solicitors (Scotland) Act 1980 (c. 46).]

Textual Amendments

F789 S. 72E inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 2, 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

[F790 72F Engagement, dismissal and withdrawal of solicitor representing accused S

(1) In any [F791 solemn proceedings] , it is the duty of a solicitor who is engaged by the accused for the purposes of his defence at any part of the proceedings to notify the court and the prosecutor of that fact forthwith in writing.

(2) A solicitor is to be taken to have complied with the duty under subsection (1) to notify the prosecutor of his engagement if, before service of the indictment, he—

(a) notified in writing the procurator fiscal for the district in which the charge against the accused was then being investigated that he was then engaged by the accused for the purposes of his defence; and

(b) had not notified that procurator fiscal in writing that he had been dismissed by the accused or had withdrawn from acting.

(3) Where any such solicitor as is referred to in subsection (1) above—

(a) is dismissed by the accused; or

(b) withdraws,

it is the duty of the solicitor to inform the court and the prosecutor of those facts forthwith in writing.

(4) The prosecutor shall, for the purposes of subsections (1) and (3), be taken to be notified or informed of any fact in accordance with those subsections if—

(a) in proceedings in the High Court, the Crown Agent; or

(b) in [F792 solemn proceedings] in the sheriff court, the procurator fiscal for the district in which the trial diet is to be held,

is so notified or, as the case may be, informed of the fact.

(5) On being informed in accordance with subsection (3) above of the dismissal or withdrawal of the accused’s solicitor in any case to which subsections (6) and (7) below apply, the court shall order that, before the trial diet, there shall be a further pre-trial diet under this section.

(6) This subsection applies to any case—

(a) where the accused is charged with an offence to which section 288C [F793 or 288DC] of this Act applies;

(b) in respect of which section 288E of this Act applies; or

(c) in which an order has been made under section 288F(2) of this Act.

(7) This subsection applies to any case in which—

(a) the solicitor was engaged for the purposes of the defence of the accused—

(i) in the case of proceedings in the High Court, at the time of a preliminary hearing or, if a preliminary hearing was dispensed with under section 72B(1) of this Act, at the time it was so dispensed with;

(ii) in the case of solemn proceedings in the sheriff court, at the time of a first diet;

(iii) at the time of a diet under this section; or

(iv) in the case of a diet which, under subsection (11) below, is dispensed with, at the time when it was so dispensed with; and

(b) the court is informed as mentioned in subsection (3) above after that time but before the trial diet.

(8) At a diet under this section, the court shall ascertain whether or not the accused has engaged another solicitor for the purposes of his defence at the trial.

(9) A diet under this section shall be not less than 10 clear days before the trial diet.

(10) A court may, at a diet under this section, postpone the trial diet for such period as appears to it to be appropriate and may, if it thinks fit, direct that such period (or some part of it) shall not count towards any time limit applying in respect of the case.

(11) The court may dispense with a diet under this section previously ordered, but only if a solicitor engaged by the accused for the purposes of the defence of the accused at the trial has, in writing—

(a) confirmed his engagement for that purpose; and

(b) requested that the diet be dispensed with.]

Textual Amendments

F790 S. 72F inserted (4.12.2004) "after s. 72E" by virtue of Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 8, 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F791 Words in s. 72F(1) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 13(1); S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F792 Words in s. 72F(4)(b) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 13(1); S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F793 Words in s. 72F(6)(a) inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(6); S.S.I. 2018/387, reg. 2 (with reg. 7)

[F794 72G Service etc. on accused through a solicitor S

(1) In any [F795 solemn proceedings] , anything which is to be served on or given, notified or otherwise intimated to, the accused shall be taken to be so served, given, notified or intimated if it is, in such form and manner as may be prescribed by Act of Adjournal, served on or given, notified or intimated to (as the case may be) the solicitor described in subsection (2) below at that solicitor’s place of business.

(2) That solicitor is any solicitor—

(a) who—

(i) has notified the prosecutor under subsection (1) of section 72F of this Act that he is engaged by the accused for the purposes of his defence; and

(ii) has not informed the prosecutor under subsection (3) of that section that he has been dismissed by, or has withdrawn from acting for, the accused; or

(b) who—

(i) has been appointed to act for the purposes of the accused’s defence at the trial under section 92 or 288D of this Act; and

(ii) has not been relieved of the appointment by the court.]

Textual Amendments

F794 S. 72G inserted (4.12.2004) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 12, 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F795 Words in s. 72G(1) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 13(2); S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F796 73. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

74 Appeals in connection with preliminary diets. S

(1) Without prejudice [F799 to any right of appeal under section 106 or 108 a party may,] in accordance with such procedure as may be prescribed by Act of Adjournal, appeal to the High Court against a decision at a first diet or a preliminary [F800 hearing].

(2) An appeal under subsection (1) above—

(a) may not be taken against a decision to adjourn the first [F801 diet] or, as the case may be, preliminary [F802 hearing] or to [F803 accelerate or] postpone the trial diet;

[F804 (aza) may not be taken against a decision taken by virtue of section 35 of the Criminal Justice (Scotland) Act 2016;]

[F805 (aa) may not be taken against a decision taken by virtue of—

(i) in the case of a first diet, section 71(1A),

(ii) in the case of a preliminary [F806 hearing, section 72(6)(e)],

of this Act;]

[F807 (ab) may not be taken against a decision at a preliminary hearing, in appointing a trial diet, to appoint or not to appoint it as a floating diet for the purposes of section 83A(2) of this Act;]

(b) must be taken not later than [F808 seven] days after the decision.

[F809 (2A) An appeal under subsection (1) may be taken—

(a) in the case of a decision to dismiss the indictment or any part of it, by the prosecutor without the leave of the court,

(b) in any other case, only with the leave of the court of first instance (granted on the motion of a party or ex proprio motu).]

(3) Where an appeal is taken under subsection (1) above, the High Court may postpone [F810 any trial diet that has been appointed] for such period as appears to it to be appropriate and may, if it thinks fit, direct that such period (or some part of it) shall not count towards any time limit applying in respect of the case.

[F811 (3A) Where an appeal is taken under subsection (1) above against a decision at a preliminary hearing, the High Court may adjourn, or further adjourn, the preliminary hearing for such period as appears to it to be appropriate and may, if it thinks fit, direct that such period (or some part of it) shall not count towards any time limit applying in respect of the case.]

(4) In disposing of an appeal under subsection (1) above the High Court—

(a) may affirm the decision of the court of first instance or may remit the case to it with such directions in the matter as it thinks fit; F812 . . .

(b) where the court of first instance has dismissed the indictment or any part of it, may reverse that decision and direct that the court of first instance fix

[F813 (i) where the indictment is in respect of the High Court, a further preliminary hearing; or

(ii) where the indictment is in respect of the sheriff court,]

a trial diet, if it has not already fixed one as regards so much of the indictment as it has not dismissed.

[F814 (c) may on cause shown extend the period mentioned in section 65(1) of this Act.]

Textual Amendments

F799 Words in s. 74(1) substituted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 88(a), 117(2); S.S.I. 2016/426, art. 2, sch.

F800 Word in s. 74(1) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 3(2), 27(1); S.S.I. 2004/405, art. 2, Sch. 1

F801 Word in s. 74(2)(a) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 3(3)(a)(i), 27(1); S.S.I. 2004/405, art. 2, Sch. 1

F802 Word in s. 74(2)(a) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 3(3)(a)(ii), 27(1); S.S.I. 2004/405, art. 2, Sch. 1

F803 Words in s. 74(2)(a) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 22; S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F804 S. 74(2)(aza) inserted (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 32; S.S.I. 2017/345, art. 3, sch.

F805 S. 74(2)(aa) inserted (1.4.2005 and 1.4.2006 for certain purposes and otherwise 1.4.2008) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 2(4), 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art 4(1)); S.S.I. 2008/57, art. 2 (with art. 3)

F806 Words s. 74(2)(aa)(ii) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 3(3)(a), 27(1); S.S.I. 2004/405, art. 2, Sch. 1

F807 S. 74(2)(ab) inserted (1.2.2005) after (aa) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 3(3)(c), 27(1); S.S.I. 2004/405, art. 2, Sch. 1

F808 Word in s. 74(2)(b) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 72(2), 206(1); S.S.I. 2011/178, art. 2, sch.

F809 S. 74(2A) inserted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 88(b), 117(2); S.S.I. 2016/426, art. 2, sch.

F810 Words in s. 74(3) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 3(4), 27(1); S.S.I. 2004/405, art. 2, Sch. 1

F811 S. 74(3A) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 3(5), 27(1); S.S.I. 2004/405, art. 2, Sch. 1

F812 Word in s. 74(4) repealed (1.8.1997) by 1997 c. 48, s. 62(1)(2), Sch. 1 para. 21(10)(a), Sch. 3; S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F813 Words in s. 74(4)(b) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 3(6), 27(1); S.S.I. 2004/405, art. 2, Sch. 1

F814 S. 74(4)(c) inserted (1.8.1997) by 1997 c. 48, s. 62(1)(2), Sch. 1 para. 21(10)(b); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

75 Computation of certain periods. S

Where the last day of any period mentioned in section 66(6), 67(3), [F815 71C(3)] F816 . . . or 74 of this Act falls on a Saturday, Sunday or court holiday, such period shall extend to and include the next day which is not a Saturday, Sunday or court holiday.

Textual Amendments

F815 Word in s. 75 inserted (29.5.2017 for specified purposes) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 80(4), 117(2); S.S.I. 2017/99, art. 3(1)(2) (with art. 6)

F816 Word in s. 75(1) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 23; S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

[F817 Adjournment and alteration of diets S

Textual Amendments

F817 S. 75A and crossheading inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 15, 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

[F818 75A Adjournment and alteration of diets S

(1) This section applies where any diet has been fixed in any proceedings on indictment.

(2) The court may, if it considers it appropriate to do so, adjourn the diet.

(3) However—

(a) in the case of a trial diet, the court may adjourn the diet under subsection (2) above only if the indictment is not brought to trial at the diet;

(b) if the court adjourns any diet under that subsection by reason only that, following enquiries for the purpose of ascertaining whether the accused has engaged a solicitor for the purposes of the conduct of his defence at or for the purposes of a preliminary hearing or at a trial, it appears to the court that he has not done so, the adjournment shall be for a period of not more than 48 hours.

(4) A trial diet in the High Court may be adjourned under subsection (2) above to a diet to be held at a sitting of the Court in another place.

(5) The court may, on the application of any party to the proceedings made at any time before commencement of any diet—

(a) discharge the diet; and

(b) fix a new diet for a date earlier or later than that for which the discharged diet was fixed.

(6) Before determining an application under subsection (5) above, the court shall give the parties an opportunity to be heard.

(7) However, where all the parties join in an application under that subsection, the court may determine the application without hearing the parties and, accordingly, may dispense with any hearing previously appointed for the purpose of subsection (6) above.

(8) Where there is a hearing for the purpose of subsection (6) above, the accused shall attend it unless the court permits the hearing to proceed notwithstanding the absence of the accused.

(9) In appointing a new trial diet under subsection (5)(b) above, the court—

(a) shall have regard to the state of preparation of the prosecutor and the accused with respect to their cases and, in particular, to the likelihood of the case being ready to proceed to trial on the date to be appointed for the trial diet; and

(b) may, if it appears to the court that there are any preliminary pleas, preliminary issues or other matters which require to be, or could with advantage be, disposed of or ascertained before the trial, appoint a diet to be held before the trial diet for the purpose of disposing of or, as the case may be, ascertaining them.

(10) A date for a new diet may be fixed under subsection (5)(b) above notwithstanding that the holding of the diet on that date would result in any provision of this Act as to the minimum or maximum period within which the diet is to be held or to commence not being complied with.

(11) In subsections (5) to (9) above, “the court” means—

(a) in the case of proceedings in the High Court, a single judge of that Court; and

(b) in the case of proceedings in the sheriff court, that court.

(12) For the purposes of subsection (5) above—

(a) a diet other than a trial diet shall be taken to commence when it is called; and

(b) a trial diet shall be taken to commence when the jury is sworn.]]

Textual Amendments

F818 S. 75A and crossheading inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 15, 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

[F819 75B [F820 Refixing diets: non-sitting days] S

(1) This section applies where in any proceedings on indictment any diet has been fixed for a non-sitting day.

(2) The court may at any time before the non-sitting day—

(a) discharge the diet; and

(b) fix a new diet for a date earlier or later than that for which the discharged diet was fixed.

(3) That is, by acting—

(a) of the court's own accord; and

(b) without the need for a hearing for the purpose.

(4) In the case of a trial diet—

(a) the prosecutor;

(b) the accused,

shall be entitled to an adjournment of the new diet fixed if the court is satisfied that it is not practicable for that party to proceed with the case on that date.

(5) The power of the court under subsection (1) above is not exercisable for the sole purpose of ensuring compliance with a time limit applying in the proceedings.

(6) In subsections (1) and (2) above, a “non-sitting day” is a day on which the court is under this Act not required to sit.

(7) In subsections (2) to (5) above, “the court” means—

(a) in the case of proceedings in the High Court, a single judge of that Court;

(b) in the case of proceedings in the sheriff court, that court.]

Textual Amendments

F819 S. 75B inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 39(1), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F820 S. 75B heading substituted (30.1.2012) by Act of Adjournal (Amendment of the Criminal Procedure (Scotland) Act 1995) (Refixing diets) 2011 (S.S.I. 2011/430), ss. 1(2), 2(3)

[F821 75C Refixing diets: non-suitable days S

(1) Where in any proceedings on indictment any diet has been fixed for a day which is no longer suitable to the court, it may, of its own accord, at any time before that diet—

(a) discharge the diet; and

(b) fix a new diet for a date earlier or later than that for which the discharged diet was fixed.

F822 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In [F823 subsection (1)], “the court” means—

(a) in the case of proceedings in the High Court, a single judge of that Court;

(b) in the case of proceedings in the sheriff court, that court.]

Textual Amendments

F821 S. 75C inserted (30.1.2012) by Act of Adjournal (Amendment of the Criminal Procedure (Scotland) Act 1995) (Refixing diets) 2011 (S.S.I. 2011/430), ss. 1(2), 2(2)

F822 S. 75C(2) repealed (25.3.2020) by Act of Adjournal (Criminal Procedure (Scotland) Act 1995 Amendment) (Miscellaneous) 2020 (S.S.I. 2020/93), paras. 1(2), 2(2)(a)

F823 Words in s. 75C(3) substituted (25.3.2020) by Act of Adjournal (Criminal Procedure (Scotland) Act 1995 Amendment) (Miscellaneous) 2020 (S.S.I. 2020/93), paras. 1(2), 2(2)(b)

Plea of guilty S

76 Procedure where accused desires to plead guilty. S

(1) Where an accused intimates in writing to the Crown Agent that he intends to plead guilty and desires to have his case disposed of at once, the accused may be served with an indictment (unless one has already been served) and a notice to appear at a diet of the appropriate court not less than four clear days after the date of the notice; and it shall not be necessary to lodge or give notice of any list of witnesses or productions.

(2) In subsection (1) above, “appropriate court” means—

(a) in a case where at the time of the intimation mentioned in that subsection an indictment had not been served, either the High Court or the sheriff court; and

(b) in any other case, the court specified in the notice served under section 66(6) of this Act on the accused.

(3) If at any such diet the accused pleads not guilty to the charge or pleads guilty only to a part of the charge, and the prosecutor declines to accept such restricted plea, the diet shall be desertedpro loco et tempore and thereafter the cause may proceed in accordance with the other provisions of this Part of this Act; except that in a case mentioned in paragraph (b) of subsection (2) above the court may postpone the trial diet [F824 [F825 or, where the accused has been indicted to the High Court,] [F825 , the first diet or (as the case may be)] the preliminary hearing] and the period of such postponement shall not count towards any time limit applying in respect of the case.

Textual Amendments

F824 Words in s. 76(3) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 24; S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F825 Words in s. 76(3) substituted (29.5.2017 for specified purposes) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 81(5), 117(2); S.S.I. 2017/99, art. 3(1)(2) (with art. 6)

77 Plea of guilty. S

(1) Where at any diet the accused tenders a plea of guilty to the indictment or any part thereof he shall do so in open court F826 ....

(2) Where the plea is to part only of the charge and the prosecutor does not accept the plea, such non-acceptance shall be recorded.

(3) Where an accused charged on indictment with any offence tenders a plea of guilty to any other offence of which he could competently be found guilty on the trial of the indictment, and that plea is accepted by the prosecutor, it shall be competent to convict the accused of the offence to which he has so pled guilty and to sentence him accordingly.

Textual Amendments

F826 Words in s. 77(1) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 83(b), 117(2); S.S.I. 2016/426, art. 2, sch.

Notice by accused S

78 Special defences, incrimination and notice of witnesses, etc. S

(1) It shall not be competent for an accused to state a special defence or to lead evidence calculated to exculpate the accused by incriminating a co-accused unless—

(a) a plea of special defence or, as the case may be, notice of intention to lead such evidence has been lodged and intimated in writing in accordance with subsection (3) belowF827 . . .

(b) the court, on cause shown, otherwise directs.

[F828 (1A) Subsection (1) does not apply where—

(a) the accused lodges a defence statement under section 70A, and

(b) the accused's defence consists of or includes a special defence.]

(2) Subsection (1) above shall apply [F829 to a plea of diminished responsibility or] to a defence of automatism [F830 , coercion or, in a prosecution for an offence to which section 288C of this Act applies, consent] as if it were a special defence.

[F831 (2A) In subsection (2) above, the reference to a defence of consent is a reference to the defence which is stated by reference to the complainer’s consent to the act which is the subject matter of the charge or the accused’s belief as to that consent.

(2B) In subsection (2A) above, “complainer” has the same meaning as in section 274 of this Act.]

(3) A plea or notice is lodged and intimated in accordance with this subsection—

(a) where [F832 the case is to be tried in the High Court] , by lodging the plea or notice with the Clerk of Justiciary and by intimating the plea or notice to the Crown Agent and to any co-accused not less than [F833 seven clear days before the preliminary hearing] ;

(b) where the [F834 case is to be tried in the sheriff court] , by lodging the plea or notice with the sheriff clerk and by intimating it to the procurator fiscal and to any co-accused at or before the first diet.

(4) It shall not be competent for the accused to examine any witnesses or to put in evidence any productions not included in the lists lodged by the prosecutor unless—

(a) written notice of the names and addresses of such witnesses and of such productions has been given—

(i) where the case is to be tried in the sheriff court, to the procurator fiscal of the district of the trial diet at or before the first diet; and

(ii) where the case is to be tried in the High Court, to the Crown Agent at least [F835 seven clear days before the preliminary hearing]

(b) the court, on cause shown, otherwise directs.

(5) A copy of every written notice required by subsection (4) above shall be lodged by the accused with the sheriff clerk of the district in which the trial diet is to be held, or in any case the trial diet of which is to be held in the High Court in Edinburgh with the Clerk of Justiciary, at or before

[F836 (a) where the case is to be tried in the High Court, the preliminary hearing;

(b) where the case is to be tried in the sheriff court, the trial diet,

for the use of the court.] .

Textual Amendments

F827 Words in s. 78(1)(a) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 25(a); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F828 S. 78(1A) inserted (6.6.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 124(4), 206(1) (with s. 124(1)); S.S.I. 2011/178, art. 2, sch.

F829 Words in s. 78(2) inserted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 46; S.S.I. 2012/160, art. 3, sch.

F830 Words in s. 78(2) substituted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 6(1)(a); S.S.I. 2002/443, art. 3 (with art. 4(4))

F831 S. 78(2A)(2B) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 6(1)(b); S.S.I. 2002/443, art. 3 (with art. 4(4))

F832 Words in s. 78(3)(a) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 25(b)(i)(A); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F833 Words in s. 78(3)(a) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 25(b)(i)(B); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F834 Words in s. 78(3)(b) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 25(b)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F835 Words in s. 78(4)(a)(ii) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 25(c); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F836 Words in s. 78(5) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 25(d); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

[F837 79 Preliminary pleas and preliminary issues. S

(1) Except by leave of the court on cause shown, no preliminary plea or preliminary issue shall be made, raised or submitted in any proceedings on indictment by any party unless his intention to do so has been stated in a notice under section 71(2) or, as the case may be, 72(3) or (6)(b)(i) of this Act.

[F838 (1A) Subsection (1) is subject to section 271Q(8).]

(2) For the purposes of this section and those sections—

(a) the following are preliminary pleas, namely—

(i) a matter relating to the competency or relevancy of the indictment;

(ii) an objection to the validity of the citation against a party, on the ground of any discrepancy between the record copy of the indictment and the copy served on him, or on account of any error or deficiency in such service copy or in the notice of citation; and

(iii) a plea in bar of trial; and

(b) the following are preliminary issues, namely—

(i) an application for separation or conjunction of charges or trials;

[F839 (ii) a preliminary objection under any of the provisions listed in subsection (3A);]

[F840 (iia) an application for a witness anonymity order under section 271P of this Act;]

F841 (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iv) an objection by a party to the admissibility of any evidence;

(v) an assertion by a party that there are documents the truth of the contents of which ought to be admitted, or that there is any other matter which in his view ought to be agreed; and

(vi) any other point raised by a party, as regards any matter not mentioned in sub-paragraphs (i) to (v) above, which could in his opinion be resolved with advantage before the trial.

(3) No discrepancy, error or deficiency such as is mentioned in subsection (2)(a)(ii) above shall entitle an accused to object to plead to the indictment unless the court is satisfied that the discrepancy, error or deficiency tended substantially to mislead and prejudice the accused.

[F842 (3A) For the purpose of subsection (2)(b)(ii), the provisions are—

(a) section 27(4A)(a) or (4B), 90C(2A), 255 or 255A of this Act,

(b) section 9(6) of the Antisocial Behaviour etc. (Scotland) Act 2004 or that section as applied by section 234AA(11) of this Act,

(c) paragraph 6(5)(b) of schedule 1 to the Criminal Justice (Scotland) Act 2016.

[F843 (d) section 1A(2)(b) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 or section 7(2)(b) of the Domestic Abuse (Scotland) Act 2018.]]

(4) Where the court, under subsection (1) above, grants leave for a party to make, raise or submit a preliminary plea or preliminary issue (other than an objection to the admissibility of any evidence) without his intention to do so having been stated in a notice as required by that subsection, the court may—

(a) if it considers it appropriate to do so, appoint a diet to be held before the trial diet for the purpose of disposing of the plea or issue; or

(b) appoint the plea or issue to be disposed of at the trial diet.]

Textual Amendments

F837 S. 79 substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 13(1), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F838 S. 79(1A) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 90(2)(a)(i), 206(1); S.S.I. 2011/178, art. 2, sch.

F839 S. 79(2)(b)(ii) substituted (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 33(a); S.S.I. 2017/345, art. 3, sch.

F840 S. 79(2)(b)(iia) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 90(2)(a)(ii), 206(1); S.S.I. 2011/178, art. 2, sch.

F841 S. 79(2)(b)(iii) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 78(2)(d), 117(2); S.S.I. 2016/426, art. 2, sch. (with art. 3)

F842 S. 79(3A) inserted (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 33(b); S.S.I. 2017/345, art. 3, sch.

F843 S. 79(3A)(d) inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 10(2); S.S.I. 2018/387, reg. 2 (with reg. 7)

[F844 79A Objections to admissibility of evidence raised after first diet or preliminary hearing S

(1) This section applies where a party seeks to raise an objection to the admissibility of any evidence after—

(a) in proceedings in the High Court, the preliminary hearing; or

(b) in proceedings on indictment in the sheriff court, the first diet.

(2) The court shall not, under section 79(1) of this Act, grant leave for the objection to be raised if the party seeking to raise it has not given written notice of his intention to do so to the other parties.

(3) However, the court may, where the party seeks to raise the objection after the commencement of the trial, dispense with the requirement under subsection (2) above for written notice to be given.

(4) Where the party seeks to raise the objection after the commencement of the trial, the court shall not, under section 79(1) of this Act, grant leave for the objection to be raised unless it considers that it could not reasonably have been raised before that time.

(5) Where the party seeks to raise the objection before the commencement of the trial and the court, under section 79(1), grants leave for it to be raised, the court shall—

(a) if it considers it appropriate to do so, appoint a diet to be held before the commencement of the trial for the purpose of disposing of the objection; or

(b) dispose of the objection at the trial diet.

(6) In appointing a diet under subsection (5)(a) above, the court may postpone the trial diet for such period as appears to it to be appropriate and may, if it thinks fit, direct that such period (or some part of it) shall not count towards any time limit applying in respect of the case.

(7) The accused shall appear at any diet appointed under subsection (5)(a) above.

(8) For the purposes of this section, the trial shall be taken to commence when the jury is sworn.]

Textual Amendments

F844 S. 79A inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 14(2), 27(1); S.S.I. 2004/405, art. 2, Sch. 1

Alteration, etc, of diet S

80 Alteration and postponement of trial diet. S

F845 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F845 S. 80 repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 26; S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

[F846 81 Procedure where trial diet does not proceed. S

(1) The prosecutor shall not raise a fresh libel in a case in which the court has deserted the trial simpliciter unless the court’s decision has been reversed on appeal.

(2) Where a trial diet in any proceedings on indictment is deserted pro loco et tempore the court may appoint a further trial diet for a later date and the accused shall appear and answer the indictment at that diet.

(3) In appointing a further trial diet under subsection (2) above, the court—

(a) shall have regard to the state of preparation of the prosecutor and the accused with respect to their cases and, in particular, to the likelihood of the case being ready to proceed to trial on the date to be appointed for the trial diet; and

(b) may, if it appears to the court that there are any preliminary pleas, preliminary issues or other matters which require to be, or could with advantage be, disposed of or ascertained before the trial diet, appoint a diet to be held before the trial diet for the purpose of disposing of or, as the case may be, ascertaining them.

(4) Subsection (5) below applies where, in any proceedings on indictment in which a trial diet has been appointed F847 ...—

(a) the diet has been deserted pro loco et tempore for any reason and no further trial diet has been appointed under subsection (2) above; or

(b) the indictment falls or is for any other reason not brought to trial and the diet has not been continued, adjourned or postponed.

(5) Where this subsection applies, the prosecutor may, at any time within the period of two months after the relevant date, give notice to the accused on another copy of the indictment to appear and answer the indictment—

(a) where the trial diet referred to in subsection (4) above was in the High Court—

(i) at a further preliminary hearing in that Court not less than seven clear days after service of the notice; or

[F848 (ii) where the charge is one that can lawfully be tried in the sheriff court, at a first diet in that court not less than 21 clear days after service of the notice; or]

(b) where the trial diet referred to in subsection (4) was in the sheriff court—

(i) at a [F849 first diet] in that court not less than seven clear days after service of the notice; or

(ii) at a preliminary hearing in the High Court not less than 21 clear days after service of the notice.

(6) Where notice is given to the accused under paragraph (a)(ii) or (b)(ii) of subsection (5) above, then for the purposes of section 65(4) of this Act—

(a) the giving of the notice shall be taken to be service of an indictment in respect of—

(i) in the case of a notice under paragraph (a)(ii) of subsection (5) above, the sheriff court; or

(ii) in the case of a notice under paragraph (b)(ii) of that subsection, the High Court; and

(b) the previous service of the indictment in respect of—

(i) in the case of a notice under paragraph (a)(ii) of subsection (5), the High Court; or

(ii) in the case of a notice under paragraph (b)(ii) of that subsection, the sheriff court,

shall be disregarded.

(7) A notice under subsection (5) above shall be in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form.

(8) In subsection (5) above, “the relevant date” means—

(a) where paragraph (a) of subsection (4) applies, the date on which the trial diet was deserted as mentioned in that paragraph; or

(b) where paragraph (b) of that subsection applies, the date of the trial diet referred to in that subsection.]

Textual Amendments

F846 S. 81 substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 9, 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5) (as amended (31.1.2005) by S.S.I. 2005/40, art. 3(2) (subject to art. 1(3)))

F847 Words in s. 81(4) omitted (31.7.2017) by virtue of The Criminal Justice (Scotland) Act 2016 (Consequential and Transitional Provisions) Regulations 2017 (S.S.I. 2017/221), regs. 1(1), 2(2)(a) (with reg. 3)

F848 S. 81(5)(a)(ii) substituted (31.7.2017) by The Criminal Justice (Scotland) Act 2016 (Consequential and Transitional Provisions) Regulations 2017 (S.S.I. 2017/221), regs. 1(1), 2(2)(b) (with reg. 4)

F849 Words in s. 81(5)(b)(i) substituted (31.7.2017) by The Criminal Justice (Scotland) Act 2016 (Consequential and Transitional Provisions) Regulations 2017 (S.S.I. 2017/221), regs. 1(1), 2(2)(c)

82 Desertion or postponement where accused in custody. S

Where—

(a) a diet is deserted pro loco et tempore;

(b) a diet is [F850 continued, accelerated,] postponed or adjourned; or

[F851 (c) an order is issued changing the place at which the trial is to take place,]

the warrant of committal on which the accused is at the time in custody till liberated in due course of law shall continue in force.

Textual Amendments

F850 Words in s. 82(b) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 27(a); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F851 S. 82(c) substituted (31.7.2017) by The Criminal Justice (Scotland) Act 2016 (Consequential and Transitional Provisions) Regulations 2017 (S.S.I. 2017/221), regs. 1(1), 2(3)

83 Transfer of sheriff court solemn proceedings. S

(1) Where an accused person has been cited to attend a [F852 diet] of the sheriff court the prosecutor may [F853 apply to the sheriff for an order for the transfer of the proceedings to a sheriff court in another district in that sheriffdom F854 . . . and for adjournment to a [F852 diet] of that court] .

[F855 (1A) Where—

(a) an accused person has been cited to attend a [F856 diet] of the sheriff court; or

(b) paragraph (a) above does not apply but it is competent so to cite an accused person,

and the prosecutor is informed by the sheriff clerk that, because of exceptional circumstances which could not reasonably have been foreseen, it is not practicable for that court (in subsection (2A)(b)(i) below referred to as the “relevant court”) or any other sheriff court in that sheriffdom to proceed with the case, the prosecutor—

(i) may, where paragraph (b) above applies, so cite the accused; and

(ii) shall, where paragraph (a) above applies or the accused is so cited by virtue of paragraph (i) above, as soon as practicable apply to the sheriff principal for an order for the transfer of the proceedings to a sheriff court in another sheriffdom F857 . . . and for adjournment to a [F856 diet] of that court.]

(2) On an application under subsection (1) above the sheriff may—

(a) after giving the accused or his counsel or solicitor an opportunity to be heard; or

(b) on the joint application of the parties,

[F858 make such order as is mentioned in that subsection].

[F859 (2A) On an application under subsection (1A) above the sheriff principal may make the order sought—

(a) provided that the sheriff principal of the other sheriffdom consents; but

(b) in a case where the trial (or part of the trial) would be transferred, shall do so only—

(i) if the sheriff of the relevant court, after giving the accused or his counsel an opportunity to be heard, consents to the transfer; or

(ii) on the joint application of the parties.

(2B) On the application of the prosecutor, a sheriff principal who has made an order under subsection (2A) above may, if the sheriff principal of the other sheriffdom mentioned in that subsection consents—

(a) revoke; or

(ii) vary so as to restrict the effect of,

that order.]

[F860 (2C) The sheriff may proceed under subsection (2) above on a joint application of the parties without hearing the parties and, accordingly, he may dispense with any hearing previously appointed for the purposes of considering the application.]

(3) F861 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F852 Words in s. 83(1) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 28(a)(i); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F853 Words in s. 83(1) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 58(1)(a), 89; S.S.I. 2003/288, art. 2, Sch.

F854 Words in s. 83(1) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 28(a)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F855 S. 83(1A) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 58(1)(b), 89; S.S.I. 2003/288, art. 2, Sch.

F856 Words in s. 83(1A) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 28(b)(i); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F857 Words in s. 83(1A)(ii) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 28(b)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F858 Words in s. 83(2) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 58(1)(c), 89; S.S.I. 2003/288, art. 2, Sch.

F859 S. 83(2A)-(2B) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 58(1)(d), 89; S.S.I. 2003/288, art. 2, Sch.

F860 S. 83(2C) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 28(c); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F861 S. 83(3) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 28(d); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

[F862 83ZA. Transfer of sheriff court solemn proceedings within sheriffdom: power of sheriff principal S

Where, because of exceptional circumstances which could not reasonably have been foreseen, it is not practicable for a sheriff court in a sheriffdom to proceed with some or all of the proceedings on indictment due to call at a diet, the sheriff principal may, of the sheriff principal’s own accord, make an order for—

(a) the transfer of the proceedings to a sheriff court in any other district in that sheriffdom; and

(b) adjournment to a diet of that court.]

Textual Amendments

F862 S. 83ZA inserted (25.3.2020) by Act of Adjournal (Criminal Procedure (Scotland) Act 1995 Amendment) (Miscellaneous) 2020 (S.S.I. 2020/93), paras. 1(2), 2(3)

[F863 [F864 Continuation of trial diet] S

Textual Amendments

F863 S. 83A and crossheading inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 5, 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F864 S. 83A crossheading substituted (28.8.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 81(7), 117(2); S.S.I. 2017/99, art. 5

[F865 83A Continuation of trial diet in the High Court S

(1) Where, in any case which is to be tried in the High Court, the trial diet does not commence on the day appointed for the holding of the diet, the indictment shall fall.

(2) However, where, in appointing a day for the holding of the trial diet, the Court has indicated that the diet is to be a floating diet, the diet and, if it is adjourned, the adjourned diet may, without having been commenced, be continued from sitting day to sitting day—

(a) by minute, in such form as may be prescribed by Act of Adjournal, signed by the Clerk of Justiciary; and

(b) up to such maximum number of sitting days after the day originally appointed for the trial diet as may be so prescribed.

(3) If such a trial diet or adjourned diet is not commenced by the end of the last sitting day to which it may be continued by virtue of subsection (2)(b) above, the indictment shall fall.

(4) For the purposes of this section, a trial diet or adjourned trial diet shall be taken to commence when it is called.

(5) In this section, “sitting day” means any day on which the court is sitting, but does not include any Saturday or Sunday or any day which is a court holiday.]]

Textual Amendments

F865 S. 83A and crossheading inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 5, 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

[F866 83B Continuation of trial diet in the sheriff court S

(1) In the sheriff court a trial diet and, if it is adjourned, the adjourned diet, may, without having been commenced, be continued from sitting day to sitting day—

(a) by minute, in such form as may be prescribed by act of adjournal, signed by the sheriff clerk,

(b) up to such maximum number of sitting days after the day originally appointed for the trial diet as may be so prescribed.

(2) The indictment falls if a trial diet, or adjourned diet, is not commenced by the end of the last sitting day to which it may be continued by virtue of subsection (1).

(3) For the purposes of this section, a trial diet or adjourned trial diet is to be taken to commence when it is called.

(4) In this section, “sitting day” means any day on which the court is sitting but does not include any Saturday or Sunday or any day which is a court holiday.]

Textual Amendments

F866 S. 83B inserted (28.8.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 81(6), 117(2); S.S.I. 2017/99, art. 5

Jurors for sittings S

84 Juries: returns of jurors and preparation of lists. S

(1) For the purposes of a trial, the sheriff principal shall return such number of jurors as he thinks fit or, in relation to a trial in the High Court, such other number as the Lord Justice Clerk or any Lord Commissioner of Justiciary may direct.

(2) The Lord Justice General, whom failing the Lord Justice Clerk, may give directions as to the areas from which and the proportions in which jurors are to be summoned for trials to be held in the High Court, and for any such trial the sheriff principal of the sheriffdom in which the trial is to take place shall requisition the required number of jurors from the areas and in the proportions so specified.

(3) Where a sitting of the High Court is to be held at a town in which the High Court does not usually sit, the jury summoned to try any case in such a sitting shall be summoned from the [F867 lists] of potential jurors of the sheriff court district in which the town is situated.

[F868 (4) For the purpose of a trial in the sheriff court, the sheriff principal must furnish the clerk of court with a list of names, containing the number of persons required, from lists of potential jurors of—

(a) the sheriff court district in which the trial is to be held (the “local district”), and

(b) if the sheriff principal considers it appropriate, any other sheriff court district or districts in the sheriffdom in which the trial is to be held (“other districts”).

(4A) Where the sheriff principal furnishes a list containing names of potential jurors of other districts, the sheriff principal may determine the proportion as between the local district and the other districts in which jurors are to be summoned.]

(5) The sheriff principal, in any return of jurors made by him to a court, shall take the names in regular order, beginning at the top of the [F869 lists] of potential jurors in each of the sheriff court districts, as required; and as often as a juror is returned to him, he shall mark or cause to be marked, in the [F869 lists] of potential jurors of the respective sheriff court districts the date when any such juror was returned to serve; and in any such return he shall commence with the name immediately after the last in the preceding return, without regard to the court to which the return was last made, and taking the subsequent names in the order in which they are entered, as directed by this subsection, and so to the end of the lists respectively.

(6) Where a person whose name has been entered in the lists of potential jurors dies, or ceases to be qualified to serve as a juror, the sheriff principal, in making returns of jurors in accordance with the M17 Jurors (Scotland) Act 1825, shall pass over the name of that person, but the date at which his name has been so passed over, and the reason therefor, shall be entered at the time in the lists of potential jurors.

(7) F870 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) The persons to serve as jurors at [F871 trials in the High Court sitting at a particular place on a particular day] shall be listed and their names and addresses shall be inserted in one roll F872 . . . , and the list made up under this section shall be known as the “list of assize”.

(9) When more than one case is set down for trial [F873 in the High Court sitting at a particular place on a particular day] , it shall not be necessary to prepare more than one list of assize, and such list F874 . . . shall be the list of assize for [F875 all trials to be held in the High Court sitting in that particular place on that particular day] ; and the persons included in such list shall be summoned to serve generally for [F876 all such trials] , and only one general execution of citation shall be returned against them; and a copy of the list of assize, certified by one of the clerks of court, shall have the like effect, for all purposes for which the list may be required, as the principal list of assize authenticated as aforesaid.

(10) No irregularity in—

(a) making up the lists in accordance with the provisions of this Act;

(b) transmitting the lists;

(c) F877 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) summoning jurors; or

(e) in returning any execution of citation,

shall constitute an objection to jurors whose names are included in the jury list, subject to the ruling of the court in relation to the effect of an objection as to any criminal act by which jurors may be returned to serve in any case contrary to this Act or the M18 Jurors (Scotland) Act l825.

Textual Amendments

F867 Word in s. 84(3) substituted (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 93(2)(a), 206(1); S.S.I. 2010/413, art. 2, Sch.

F868 S. 84(4)(4A) substituted for s. 84(4) (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 93(2)(b), 206(1); S.S.I. 2010/413, art. 2, Sch.

F869 Word in s. 84(5) substituted (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 93(2)(c), 206(1); S.S.I. 2010/413, art. 2, Sch.

F870 S. 84(7) repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 93(2)(d), 206(1); S.S.I. 2010/413, art. 2, Sch.

F871 Words in s. 84(8) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 29(a)(i); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F872 Words in s. 84(8) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 29(a)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F873 Words in s. 84(9) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 29(b)(i); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F874 Words in s. 84(9) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 29(b)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F875 Words in s. 84(9) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 29(b)(iii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F876 Words in s. 84(9) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 29(b)(iv); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F877 S. 84(10)(c) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 29(c); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

Marginal Citations

M17 6 Geo. 4. 1825 c.22.

M18 6 Geo 4. 1825 c.22.

85 Juries: citation and attendance of jurors. S

(1) It shall not be necessary to serve any list of jurors upon the accused, F878 . . ..

[F879 [F880 (2) A list of jurors shall—

(a) be prepared and kept in such form and manner; and

(b) contain such minimum number of names,

as may be prescribed by Act of Adjournal.]

(2A) The clerk of the court before which the trial is take place shall, on an application made to him by or on behalf of an accused, supply the accused, free of charge, on the day on which the trial diet is called, and before the oath has been administered to the jurors for the trial of the accused, with a copy of a list of jurors prepared under subsection (2) above.

(2B) Where an accused has been supplied under subsection (2A) above with a list of jurors—

(a) neither he nor any person acting on his behalf shall make a copy of that list, or any part thereof; and

(b) he or his representative shall return the list to the clerk of the court after the oath has been administered to the jurors for his trial.

(2C) A person who fails to comply with subsection (2B) above shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale.]

(3) It shall not be necessary to summon all the jurors contained in any list of jurors under this Act, but it shall be competent to summon such jurors only, commencing from the top of the list, as may be necessary to ensure a sufficient number for the trial of the cases which remain for trial at the date of the citation of the jurors, and such number shall be fixed by the clerk of the court in which the trial diet is to be called, or in any case in the High Court by the Clerk of Justiciary, and the jurors who are not so summoned shall be placed upon the next list issued, until they have attended to serve.

(4) [F881 The sheriff clerk of—

(a) the sheriffdom in which the High Court is to sit, or

(b) the sheriff court district in which a trial in the sheriff court is to be held,

shall] fill up and sign a proper citation addressed to each F882 . . . juror, and shall cause the same to be transmitted to him by letter, sent to him at his place of residence as stated in the lists of potential jurors F883 ... or to be served on him by an officer of law; and a certificate under the hand of such sheriff clerk of the citation of any jurors or juror in the manner provided in this subsection shall be a legal citation.

[F884 (4A) Citation of a juror may also be effected by an electronic citation which is sent—

(a) by or on behalf of the sheriff clerk; and

(b) by means of electronic communication,

to the home or business email address of the juror.

(4B) Citation under subsection (4A) above is a legal citation if the sheriff clerk possesses a legible version of an electronic communication which—

(a) is signed by electronic signature by the person who signed the citation;

(b) includes the citation; and

(c) bears to have been sent to the home or business email address of the juror being cited.

(4C) In subsection (4A) above, an “electronic citation” is a citation in electronic form which—

(a) is capable of being kept in legible form; and

(b) is signed by electronic signature by or on behalf of the sheriff clerk.]

(5) The sheriff clerk of the sheriffdom in which [F885 the High Court is to sit on any particular day] shall issue citations to the whole jurors required for [F886 trials to be held in the High Court sitting in the sheriffdom on that day] , whether the jurors reside in that or in any other sheriffdom.

(6) Persons cited to attend as jurors may, unless they have been excused in respect thereof under section 1 [F887 or 1A] of the M19 Law Reform (Miscellaneous Provisions) (Scotland) Act l980, be fined up to level 3 on the standard scale if they fail to attend in compliance with the citation.

(7) A fine imposed under subsection (6) above may, on application, be remitted—

(a) by a Lord Commissioner of Justiciary where imposed in the High Court;

(b) by the sheriff court where imposed in the sheriff court,

and no court fees or expenses shall be exigible in respect of any such application.

(8) A person shall not be exempted by sex or marriage from the liability to serve as a juror.

Textual Amendments

F878 Words in s. 85(1) repealed (1.8.1997) by 1997 c. 48, ss. 58(2), 62(2), Sch. 3; S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F879 S. 85(2)(2A)(2B)(2C) substituted (1.8.1997) for s. 85(2) by 1997 c. 48, s. 58(3); S.I. 1997/1714, art. 3, Sch. (subject to arts. 4, 5)

F880 S. 85(2) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 30(a); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F881 Words in s. 85(4) substituted (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 93(3)(a), 206(1); S.S.I. 2010/413, art. 2, Sch.

F882 Word in s. 85(4) repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 93(3)(b), 206(1); S.S.I. 2010/413, art. 2, Sch.

F883 Words in s. 85(4) repealed (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 5 para. 44; S.S.I. 2015/77, art. 2(2)(3), sch.

F884 S. 85(4A)-(4C) inserted (1.11.2012) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 29, 84(1); S.S.I. 2012/274, art. 2, sch.

F885 Words in s. 85(5) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 30(c)(i); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F886 Words in s. 85(5) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 30(c)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F887 Words in s. 85(6) inserted (10.1.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 203, 206(1), Sch. 7 para. 48; S.S.I. 2010/413, art. 2, Sch.

Marginal Citations

M19 1980 c.55.

86 Jurors: excusal and objections. S

(1) Where, before a juror is sworn to serve, the parties jointly apply for him to be excused the court shall, notwithstanding that no reason is given in the application, excuse that juror from service.

(2) Nothing in subsection (1) above shall affect the right of the accused or the prosecutor to object to any juror on cause shown.

(3) If any objection is taken to a juror on cause shown and such objection is founded on the want of sufficient qualification as provided by section 1(1) of the M20 Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, such objection shall be proved only by the oath of the juror objected to.

(4) No objection to a juror shall be competent after he has been sworn to serve.

Marginal Citations

M20 1980 c.55.

Non-availability of judge S

87 Non-availability of judge. S

(1) Where the court is unable to proceed owing to the death, illness or absence of the presiding judge, the clerk of court may convene the court (if necessary) and—

(a) in a case where no evidence has been led, adjourn the diet and any other diet appointed for [F888 the same day] to—

(i) a time later the same day, or a date not more than seven days later, when he believes a judge will be available; or

(ii) a later [F889 date] not more than two months after the date of the adjournment; or

(b) in a case where evidence has been led—

(i) adjourn the diet and any other diet appointed for [F890 the same day] to a time later the same day, or a date not more than seven days later, when he believes a judge will be available; or

(ii) with the consent of the parties, desert the diet pro loco et tempore.

(2) Where a diet has been adjourned under sub-paragraph (i) of either paragraph (a) or paragraph (b) of subsection (1) above the clerk of court may, where the conditions of that subsection continue to be satisfied, further adjourn the diet under that sub-paragraph; but the total period of such adjournments shall not exceed seven days.

(3) Where a diet has been adjourned under subsection (1)(b)(i) above the court may, at the adjourned diet—

(a) further adjourn the diet; or

(b) desert the diet pro loco et tempore.

(4) Where a diet is deserted in pursuance of subsection (1)(b)(ii) or (3)(b) above, the Lord Advocate may raise and insist in a new indictment, and—

(a) where the accused is in custody it shall not be necessary to grant a new warrant for his incarceration, and the warrant or commitment on which he is at the time in custody till liberation in due course of law shall continue in force; and

(b) where the accused is at liberty on bail, his bail shall continue in force.

Textual Amendments

F888 Words in s. 87(1)(a) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 31(a)(i); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F889 Words in s. 87(1)(a)(ii) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 31(a)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F890 Words in s. 87(1)(b)(i) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 25, 27(1), Sch. para. 31(b); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

[F891 87A Disposal of preliminary matters at trial diet S

Where—

(a) any preliminary plea or issue; or

(b) in a case to be tried in the High Court, any application, notice or other matter referred to in section 72(6)(b)(iii) or (iv) of this Act,

is to be disposed of at the trial diet, it shall be so disposed of before the jury is sworn, unless, where it is a preliminary issue consisting of an objection to the admissibility of any evidence, the court at the trial diet considers it is not capable of being disposed of before then.]

Textual Amendments

F891 S. 87A inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 3), ss. 13(2), 27(1); S.S.I. 2004/405, art. 2, Sch. 1

Jury for trial S

88 Plea of not guilty, balloting and swearing of jury, etc. S

(1) Where the accused pleads not guilty, the clerk of court shall record that fact and proceed to ballot the jury.

(2) The jurors for the trial shall be chosen in open court by ballot from the list of persons summoned in such manner as shall be prescribed by Act of Adjournal, and the persons so chosen shall be the jury to try the accused, and their names shall be recorded in the minutes of the proceedings.

(3) It shall not be competent for the accused or the prosecutor to object to a juror on the ground that the juror has not been duly cited to attend.

(4) Notwithstanding subsection (1) above, the jurors chosen for any particular trial may, when that trial is disposed of, without a new ballot serve on the trials of other accused, provided that—

(a) the accused and the prosecutor consent;

(b) the names of the jurors are contained in the list of jurors; and

(c) the jurors are duly sworn to serve on each successive trial.

(5) When the jury has been balloted, the clerk of court shall inform the jury of the charge against the accused—

(a) by reading the words of the indictment (with the substitution of the third person for the second); or

(b) if the presiding judge, because of the length or complexity of the indictment, so directs, by reading to the jury a summary of the charge approved by the judge,

and copies of the indictment shall be provided for each member of the jury without lists of witnesses or productions.

(6) After reading the charge as mentioned in subsection (5) above and any special defence as mentioned in section 89(1) of this Act, the clerk of court shall administer the oath in common form.

(7) The court may excuse a juror from serving on a trial where the juror has stated the ground for being excused in open court.

(8) Where a trial which is proceeding is adjourned from one day to another, the jury shall not be secluded during the adjournment, unless, on the motion of the prosecutor or the accused or ex proprio motu the court sees fit to order that the jury be kept secluded.

Modifications etc. (not altering text)

C79 S. 88(1) excluded by S.I. 1996/513, Sch. 2 rule 14.1A(1) (as inserted (1.6.2010) by Act of Adjournal (Criminal Procedure Rules Amendment) (Miscellaneous) 2010 (S.S.I. 2010/184), para. 3)

89 Jury to be informed of special defence. S

(1) Subject to subsection (2) below, where the accused has lodged a plea of special defence, the clerk of court shall, after informing the jury, in accordance with section 88(5) of this Act, of the charge against the accused, and before administering the oath, read to the jury the plea of special defence.

(2) Where the presiding judge on cause shown so directs, the plea of special defence shall not be read over to the jury in accordance with subsection (1) above; and in any such case the judge shall inform the jury of the lodging of the plea and of the general nature of the special defence.

(3) Copies of a plea of special defence shall be provided for each member of the jury.

90 Death or illness of jurors. S

(1) Where in the course of a trial—

(a) a juror dies; or

(b) the court is satisfied that it is for any reason inappropriate for any juror to continue to serve as a juror,

the court may in its discretion, on an application made by the prosecutor or an accused, direct that the trial shall proceed before the remaining jurors (if they are not less than twelve in number), and where such direction is given the remaining jurors shall be deemed in all respects to be a properly constituted jury for the purpose of the trial and shall have power to return a verdict accordingly whether unanimous or, subject to subsection (2) below, by majority.

(2) The remaining jurors shall not be entitled to return a verdict of guilty by majority unless at least eight of their number are in favour of such verdict and if, in any such case, the remaining jurors inform the court that—

(a) fewer than eight of their number are in favour of a verdict of guilty; and

(b) there is not a majority in favour of any other verdict,

they shall be deemed to have returned a verdict of not guilty.

[F892 Obstructive witnesses S

Textual Amendments

F892 Ss. 90A-90E inserted (1.2.2005 for specified purposes and otherwise prosp.) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 11, 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (with transitional provision in arts. 3-5)

90A Apprehension of witnesses in proceedings on indictment S

(1) In any proceedings on indictment, the court may, on the application of any of the parties, issue a warrant for the apprehension of a witness if subsection (2) or (3) below applies in relation to the witness.

(2) This subsection applies if the witness, having been duly cited to any diet in the proceedings, deliberately and obstructively fails to appear at the diet.

(3) This subsection applies if the court is satisfied by evidence on oath that the witness is being deliberately obstructive and is not likely to attend to give evidence at any diet in the proceedings without being compelled to do so.

(4) For the purposes of subsection (2) above, a witness who, having been duly cited to any diet, fails to appear at the diet is to be presumed, in the absence of any evidence to the contrary, to have so failed deliberately and obstructively.

(5) An application under subsection (1) above—

(a) may be made orally or in writing;

(b) if made in writing—

(i) shall be in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form; and

(ii) may be disposed of in court or in chambers after such inquiry or hearing (if any) as the court considers appropriate.

(6) A warrant issued under this section shall be in such form as may be prescribed by Act of Adjournal or as nearly as may be in such form.

(7) A warrant issued under this section in the form mentioned in subsection (6) above shall imply warrant to officers of law—

(a) to search for and apprehend the witness in respect of whom it is issued;

(b) to bring the witness before the court;

(c) in the meantime, to detain the witness in a police station, police cell or other convenient place; and

(d) so far as is necessary for the execution of the warrant, to break open shut and lockfast places.

(8) It shall not be competent, in any proceedings on indictment, for a court to issue a warrant for the apprehension of a witness otherwise than in accordance with this section.

(9) A person apprehended under a warrant issued under this section shall wherever practicable be brought before the court not later than in the course of the first day on which—

(a) in the case of a warrant issued by a single judge of the High Court, that Court;

(b) in any other case, the court,

is sitting after he is taken into custody.

(10) In this section and section 90B, “the court” means F893 . . .

(a) where the witness is to give evidence in proceedings in the High Court, a single judge of that Court; or

(b) where the witness is to give evidence in proceedings on indictment in the sheriff court, any sheriff court with jurisdiction in relation to the proceedings.

Textual Amendments

F893 Words in s. 90A(10) repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 15(1); S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

90B Orders in respect of witnesses apprehended under section 90A S

(1) Where a witness is brought before the court in pursuance of a warrant issued under section 90A of this Act, the court shall, after giving the parties and the witness an opportunity to be heard, make an order—

(a) detaining the witness until the conclusion of the diet at which the witness is to give evidence;

(b) releasing the witness on bail; or

(c) liberating the witness.

(2) The court may make an order under subsection (1)(a) or (b) above only if it is satisfied that—

(a) the order is necessary with a view to securing that the witness appears at the diet at which the witness is to give evidence; and

(b) it is appropriate in all the circumstances to make the order.

[F894 (2A) Whenever the court makes an order under subsection (1) above, it shall state the reasons for the terms of the order.]

(3) Subsection (1) above is without prejudice to any power of the court to—

(a) make a finding of contempt of court in respect of any failure of a witness to appear at a diet to which he has been duly cited; and

(b) dispose of the case accordingly.

(4) Where—

(a) an order under subsection (1)(a) above has been made in respect of a witness; and

(b) at, but before the conclusion of, the diet at which the witness is to give evidence, the court in which the diet is being held excuses the witness,

that court, on excusing the witness, may recall the order under subsection (1)(a) above and liberate the witness.

(5) On making an order under subsection (1)(b) above in respect of a witness, the court shall impose such conditions as it considers necessary with a view to securing that the witness appears at the diet at which he is to give evidence.

(6) However, the court may not impose as such a condition a requirement that the witness or a cautioner on his behalf deposit a sum of money in court.

(7) Where the court makes an order under subsection (1)(a) above in respect of a witness, the court shall, on the application of the witness—

(a) consider whether the imposition of a remote monitoring requirement would enable it to make an order under subsection (1)(b) above releasing the witness on bail subject to a movement restriction condition; and

(b) if so—

(i) make an order under subsection (1)(b) above releasing the witness on bail subject to such a condition (as well as such other conditions required to be imposed under subsection (5) above); and

(ii) in the order, impose, as a further condition under subsection (5) above, a remote monitoring requirement.

(8) Subsections (7) to (19) of section 24A of this Act apply in relation to remote monitoring requirements imposed under subsection (7)(b)(ii) above and to the imposing of such requirements as they apply to remote monitoring requirements imposed under section 24A(1) or (2) of this Act and the imposing of such requirements, but with the following modifications—

(a) references to a remote monitoring requirement imposed under section 24A(1) or (2) of this Act shall be read as if they included references to a remote monitoring requirement imposed under subsection (7)(b)(ii) above;

(b) references to the accused shall be read as if they were references to the witness in respect of whom the order under subsection (1)(b) above is made.

(9) The powers conferred and duties imposed by sections 24B to 24D of this Act are exercisable in relation to remote monitoring requirements imposed under subsection (7)(b)(ii) above as they are exercisable in relation to remote monitoring requirements imposed under subsection (1) or (2) of section 24A of this Act; and—

(a) references in those sections to remote monitoring requirements shall be read accordingly; and

(b) references to the imposition of any requirement as a further condition of bail shall be read as if they were references to the imposition of the requirement as a further condition under subsection (5) above.

(10) Section 25 of this Act (which makes provision for an order granting bail to specify the conditions imposed on bail and the accused’s proper domicile of citation) shall apply in relation to an order under subsection (1)(b) above as it applies to an order granting bail, but with the following modifications—

(a) references to the accused shall be read as if they were references to the witness in respect of whom the order under subsection (1)(b) above is made;

(b) references to the order granting bail shall be read as if they were references to the order under subsection (1)(b) above;

(c) subsection (3) shall be read as if for the words from “relating” to “offence” in the third place where it occurs there were substituted at which the witness is to give evidence.

(11) In this section—

(a) “a movement restriction condition” means, in relation to a witness released on bail under subsection (1)(b) above, a condition imposed under subsection (5) above restricting the witness’s movements, including such a condition requiring the witness to be, or not to be, in any place or description of place for, or during, any period or periods or at any time; and

(b) “a remote monitoring requirement” means, in relation to a movement restriction condition, a requirement that compliance with the condition be remotely monitored.

Textual Amendments

F894 S. 90B(2A) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 27(1), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

90C Breach of bail under section 90B(1)(b) S

(1) A witness who, having been released on bail by virtue of an order under subsection (1)(b) of section 90B of this Act, fails without reasonable excuse—

(a) to appear at any diet to which he has been cited; or

(b) to comply with any condition imposed under subsection (5) of that section,

shall be guilty of an offence and liable on conviction on indictment to the penalties specified in subsection (2) below.

(2) Those penalties are—

(a) a fine; and

(b) imprisonment for a period not exceeding two years.

[F895 (2A) In any proceedings in relation to an offence under subsection (1) above, the fact that (as the case may be) a person—

(a) was on bail;

(b) was subject to any particular condition of bail;

(c) failed to appear at a diet;

(d) was cited to a diet,

shall, unless challenged by giving notice of a preliminary objection in accordance with section 71(2) or 72(6)(b)(i) of this Act, be held as admitted.]

(3) Subsection (4) below applies in proceedings against a witness for an offence under paragraph (b) of subsection (1) above where the condition referred to in that paragraph is—

(a) a movement restriction condition (within the meaning of section 90B(11) of this Act) in respect of which a remote monitoring requirement has been imposed under section 90B(7)(b)(ii) of this Act; or

(b) a requirement imposed under section 24D(3)(b)(as extended by section 90B(9)) of this Act.

(4) In proceedings in which this subsection applies, evidence of—

(a) in the case referred to in subsection (3)(a) above, the presence or absence of the witness at a particular place at a particular time; or

(b) in the case referred to in subsection (3)(b) above, any tampering with or damage to a device worn or carried by the witness for the purpose of remotely monitoring his whereabouts,

may, subject to subsections (7) and (8) below, be given by the production of the document or documents referred to in subsection (5) below.

(5) That document or those documents is or are a document or documents bearing to be—

(a) a statement automatically produced by a device specified in regulations made under section 24D(4)(as extended by section 90B(9)) of this Act by which the witness’s whereabouts were remotely monitored; and

(b) a certificate signed by a person nominated for the purpose of this paragraph by the Scottish Ministers that the statement relates to—

(i) in the case referred to in subsection (3)(a) above, the whereabouts of the witness at the dates and times shown in the statement; or

(ii) in the case referred to in subsection (3)(b) above, any tampering with or damage to the device.

(6) The statement and certificate mentioned in subsection (5) above shall, when produced in the proceedings, be sufficient evidence of the facts set out in them.

(7) Neither the statement nor the certificate mentioned in subsection (5) above shall be admissible in evidence unless a copy of both has been served on the witness prior to the trial.

(8) Without prejudice to subsection (7) above, where it appears to the court that the witness has had insufficient notice of the statement or certificate, it may adjourn the trial or make an order which it thinks appropriate in the circumstances.

(9) In subsections (7) and (8), “the trial” means the trial in the proceedings against the witness referred to in subsection (3) above.

(10) Section 28 of this Act shall apply in respect of a witness who has been released on bail by virtue of an order under section 90B(1)(b) of this Act as it applies to an accused released on bail, but with the following modifications—

(a) references to an accused shall be read as if they were references to the witness;

(b) in subsection (2), the reference to the court to which the accused’s application for bail was first made shall be read as if it were a reference to the court which made the order under section 90B(1)(b) of this Act in respect of the witness; and

(c) in subsection (4)—

(i) references to the order granting bail and original order granting bail shall be read as if they were references to the order under section 90B(1)(b) and the original such order respectively;

(ii) paragraph (a) shall be read as if at the end there were inserted “and make an order under section 90B(1)(a) or (c) of this Act in respect of the witness”; and

(iii) paragraph (c) shall be read as if for the words from “complies” to the end there were substituted “appears at the diet at which the witness is to give evidence”.

Textual Amendments

F895 S. 90C(2A) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 27(2), 84; S.S.I. 2007/479, art. 3(1), Sch. (subject to art. 9) (as amended by S.S. I. 2007/527)

90D Review of orders under section 90B(1)(a) or (b) S

(1) Where a court has made an order under subsection (1)(a) of section 90B of this Act, the court may, on the application of the witness in respect of whom the order was made, F896 . . . and after giving the parties and the witness an opportunity to be heard—

(a) recall the order; and

(b) make an order under subsection (1)(b) or (c) of that section in respect of the witness.

(2) Where a court has made an order under subsection (1)(b) of section 90B of this Act, the court may, after giving the parties and the witness an opportunity to be heard—

(a) on the application of the witness in respect of whom the order was made F897 . . . —

(i) review the conditions imposed under subsection (5) of that section at the time the order was made; and

(ii) make a new order under subsection (1)(b) of that section and impose different conditions under subsection (5) of that section;

(b) on the application of the party who made the application under section 90A(1) of this Act in respect of the witness, review the order and the conditions imposed under subsection (5) of [F898 section 90B] at the time the order was made, and

(i) recall the order and make an order under subsection (1)(a) of that section in respect of the witness; or

(ii) make a new order under subsection (1)(b) of that section and impose different conditions under subsection (5) of that section.

(3) The court may not review an order by virtue of subsection [F899 (1) or (2) above unless—

(a) in the case of an application by the witness, the circumstances of the witness have changed materially; or

(b) in that or [F900 any other] case, the witness or] party making the application puts before the court material information which was not available to it when it made the order which is the subject of the application.

(4) An application under this section by a witness—

(a) where it relates to the first order made under section 90B(1)(a) or (b) of this Act in respect of the witness, shall not be made before the fifth day after that order is made;

(b) where it relates to any subsequent such order, shall not be made before the fifteenth day after the order is made.

(5) On receipt of an application under subsection (2)(b) above the court shall—

(a) intimate the application to the witness in respect of whom the order which is the subject of the application was made;

(b) fix a diet for hearing the application and cite the witness to attend the diet; and

(c) where it considers that the interests of justice so require, grant warrant to arrest the witness.

(6) Nothing in this section shall affect any right of a person to appeal against an order under section 90B(1).

Textual Amendments

F896 Words in s. 90D(1) repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 27(3)(a), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F897 Words in s. 90D(2)(a) repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 27(3)(b), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F898 Words in s. 90D(2)(b) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 15(2); S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F899 Words in s. 90D(3) substituted (10.12.2007) by virtue of Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 27(3)(c), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F900 Words in s. 90D(3)(b) substituted (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) ss. 203, 206(1), {Sch. 7 para. 49}; S.S.I. 2010/413, art. 2, Sch.

90E Appeals in respect of orders under section 90B(1) S

(1) Any of the parties specified in subsection (2) below may appeal to the High Court against—

(a) any order made under subsection (1)(a) or (c) of section 90B of this Act; or

(b) where an order is made under subsection (1)(b) of that section—

(i) the order;

(ii) any of the conditions imposed under subsection (5) of that section on the making of the order; or

(iii) both the order and any such conditions.

(2) The parties referred to in subsection (1) above are—

(a) the witness in respect of whom the order which is the subject of the appeal was made;

(b) the prosecutor; and

(c) the accused.

(3) A party making an appeal under subsection (1) above shall intimate it to the other parties specified in subsection (2) above and, for that purpose, intimation to the [F901 Crown Agent] shall be sufficient intimation to the prosecutor.

(4) An appeal under this section shall be disposed of by the High Court or any Lord Commissioner of Justiciary in court or in chambers after such inquiry and hearing of the parties as shall seem just.

(5) Where the witness in respect of whom the order which is the subject of an appeal under this section was made is under 21 years of age, section 51 of this Act shall apply to the High Court or, as the case may be, the Lord Commissioner of Justiciary when disposing of the appeal as it applies to a court when remanding or committing a person of the witness’s age for trial or sentence.]

Textual Amendments

F901 Words in s. 90E(3) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 15(3); S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

Trial S

91 Trial to be continuous. S

Every trial shall proceed from day to day until it is concluded unless the court sees cause to adjourn over a day or days.

92 Trial in presence of accused. S

(1) Without prejudice to section 54 of this Act, and subject to [F902 subsections (2) and (2A)] below, no part of a trial shall take place outwith the presence of the accused.

(2) If during the course of his trial an accused so misconducts himself that in the view of the court a proper trial cannot take place unless he is removed, the court may order—

(a) that he is removed from the court for so long as his conduct makes it necessary; and

(b) that the trial proceeds in his absence,

but if he is not legally represented the court shall appoint F903 . . . a solicitor to represent his interests during such absence.

[F904 (2A) If—

(a) after evidence has been led which substantially implicates the accused in respect of the offence charged in the indictment or, where two or more offences are charged in the indictment, any of them, the accused fails to appear at the trial diet; and

(b) the failure to appear occurred at a point in proceedings where the court is satisfied that it is in the interests of justice to do so,

then the court may, on the motion of the prosecutor and after hearing the parties on the motion, proceed with the trial and dispose of the case in the absence of the accused.

(2B) Where a motion is made under subsection (2A) above, the court shall—

(a) if satisfied that there is a solicitor with authority to act for the purposes of—

(i) representing the accused’s interests at the hearing on the motion; and

(ii) if the motion is granted, the accused’s defence at the trial,

allow that solicitor to act for those purposes; or

(b) if there is no such solicitor, at its own hand appoint a solicitor to act for those purposes.

(2C) It is the duty of a solicitor appointed under subsection (2) or (2B)(b) above to act in the best interests of the accused.

(2D) In all other respects, a solicitor so appointed has, and may be made subject to, the same obligations and has, and may be given, the same authority as if engaged by the accused; and any employment of and instructions given to counsel by the solicitor shall proceed and be treated accordingly.

(2E) Where the court is satisfied that—

(a) a solicitor allowed to act under subsection (2B)(a) above no longer has authority to act; or

(b) a solicitor appointed under subsection (2) or (2B)(b) above is no longer able to act in the best interests of the accused,

the court may relieve that solicitor and appoint another solicitor for the purposes referred to in subsection (2) or, as the case may be, (2B) above.

(2F) Subsections (2B)(b) and (2E) above shall not apply in the case of proceedings—

(a) in respect of a sexual offence to which section 288C of this Act applies; or

[F905 (aa) in respect of an offence to which section 288DC of this Act applies;]

(b) in respect of which section 288E of this Act applies; or

(c) in which an order has been made under section 288F(2) of this Act.]

(3) From the commencement of the leading of evidence in a trial for rape or the like the judge may, if he thinks fit, cause all persons other than the accused and counsel and solicitors to be removed from the court-room.

[F906 (4) In this section—

(a) references to a solicitor appointed under subsection (2) or (2B)(b) above include references to a solicitor appointed under subsection (2E) above;

(b) “ counsel ” includes, in relation to the High Court of Justiciary, a solicitor who has a right of audience in that Court under section 25A of the Solicitors (Scotland) Act 1980 (c. 46). ]

Textual Amendments

F902 Words in s. 92(1) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 10(1), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (with savings in arts. 3-5)

F903 Words in s. 92(2) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 10(2), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (with savings in arts. 3-5)

F904 S. 92(2A)-(2F) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 10(3), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (with savings in arts. 3-5) (as amended (31.1.2005) by S.S.I. 2005/40, art. 3(3) (subject to art. 1(3)))

F905 S. 92(2F)(aa) inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(7); S.S.I. 2018/387, reg. 2 (with reg. 7)

F906 S. 92(4) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 10(4), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (with savings in arts. 3-5)

93 Record of trial. S

(1) The proceedings at the trial of any person who, if convicted, is entitled to appeal under Part VIII of this Act, shall be recorded by means of shorthand notes or by mechanical means.

(2) A shorthand writer shall—

(a) sign the shorthand notes taken by him of such proceedings and certify them as being complete and correct; and

(b) retain the notes.

(3) A person recording such proceedings by mechanical means shall—

(a) certify that the record is true and complete;

(b) specify in the certificate the proceedings or, as the case may be, the part of the proceedings to which the record relates; and

(c) retain the record.

(4) The cost of making a record under subsection (1) above shall be defrayed, in accordance with scales of payment fixed for the time being by Treasury, out of money provided by Parliament.

(5) In subsection (1) above “proceedings at the trial” means the whole proceedings including, without prejudice to that generality—

(a) discussions—

(i) on any objection to the relevancy of the indictment;

(ii) with respect to any challenge of jurors; and

(iii) on all questions arising in the course of the trial;

(b) the decision of the court on any matter referred to in paragraph (a) above;

(c) the evidence led at the trial;

(d) any statement made by or on behalf of the accused whether before or after the verdict;

(e) the judge’s charge to the jury;

(f) the speeches of counsel or agent;

(g) the verdict of the jury;

(h) the sentence by the judge.

Modifications etc. (not altering text)

C80 S. 93(2)-(4) applied (3.11.2003 but only in respect of summary proceedings) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 21(6), 89; S.S.I. 2003/475, art. 2, Sch.

94 Transcripts of record and documentary productions. S

(1) The Clerk of Justiciary may direct that a transcript of a record made under section 93(1) of this Act, or any part thereof, be made and delivered to him for the use of any judge.

(2) Subject to subsection (3) below, the Clerk of Justiciary shall, if requested to do so by—

(a) the Secretary of State [F907 or, subject to subsection (2B) below, the prosecutor] ; or

(b) any other person [F908 , not being a person convicted at the trial,] on payment of such charges as may be fixed for the time being by Treasury,

direct that such a transcript be made and sent to the person who requested it.

[F909 (2A) If—

(a) on the written application of a person convicted at the trial and granted leave to appeal; and

[F910 (b) either of the conditions in subsection (2AZA) is met or it is otherwise in the interests of justice to do so,]

a judge of the High Court [F911 may order, and in that event] the Clerk of Justiciary shall direct, on payment of such charges as are mentioned in paragraph (b) of subsection (2) above, that such a transcript be made and sent to that person.

[F912 (2AZA) The conditions mentioned in subsection (2A)(b) are that—

(a) a ground of appeal, for which leave to appeal has been granted, reveals a significant dispute between that ground and the report of the trial judge on the nature and extent of the evidence, speech or other part of the record to which the application relates; or

(b) the trial judge’s report does not, in relation to a ground of appeal for which leave to appeal has been granted, provide a sufficient narrative of the nature and extent of the evidence, speech or other part of the record to which the application relates.]

[F913 (2AA) Subsection (2A) applies to a person mentioned in subsection (2AB) as it applies to a person convicted at the trial, with the modification that the reference to the transcript in subsection (2A) is to be construed as a reference to the transcript of the record made of proceedings at the trial resulting in the acquittal mentioned in subsection (2AB)(b).

(2AB) The person mentioned in subsection (2AA) is a person who—

(a) is convicted of the offence mentioned in subsection (1) of section 11 of the Double Jeopardy (Scotland) Act 2011 (asp 16));

(b) is subsequently acquitted of an offence mentioned in subsection (2) of that section; and

(c) desires to appeal, under subsection (7) of that section, against the conviction of the offence mentioned in paragraph (a).]

(2B) Where, as respects any person convicted at the trial, the Crown Agent has received intimation under section 107(10) of this Act, the prosecutor shall not be entitled to make a request under subsection (2)(a) above; but if, on the written application of the prosecutor and on cause shown, a judge of the High Court so orders, the Clerk of Justiciary shall direct that such a transcript be made and sent to the prosecutor.

(2C) Any application under subsection (2A) above shall—

(a) be made within 14 days after the date on which leave to appeal was granted or within such longer period after that date as a judge of the High Court may, on written application and on cause shown, allow; and

[F914 (aa) set out, for each ground of appeal to which the application relates, the particular evidence, speech or other part of the record required; and]

(b) be intimated forthwith by the applicant to the prosecutor.

(2D) The prosecutor may, within 7 days after receiving intimation under subsection (2C)(b) above, make written representations to the court as respects the application under subsection (2A) above (the application being determined without a hearing).

(2E) Any application under subsection (2B) above shall—

(a) be made within 14 days after the receipt of intimation mentioned in that subsection or within such longer period after that receipt as a judge of the High Court may, on written application and on cause shown, allow; and

(b) be intimated forthwith by the prosecutor to the person granted leave to appeal.

(2F) The person granted leave to appeal may, within 7 days after receiving intimation under subsection (2E)(b) above, make written representations to the court as respects the application under subsection (2B) above (the application being determined without a hearing).]

(3) The Secretary of State may, after consultation with the Lord Justice General, by order made by statutory instrument provide that in any class of proceedings specified in the order the Clerk of Justiciary shall only make a direction under subsection (2)(b) above if satisfied that the person requesting the transcript is of a class of person so specified and, if purposes for which the transcript may be used are so specified, intends to use it only for such a purpose; and different purposes may be so specified for different classes of proceedings or classes of person.

(4) Where subsection (3) above applies as respects a direction, the person to whom the transcript is sent shall, if purposes for which that transcript may be used are specified by virtue of that subsection, use it only for such a purpose.

(5) A statutory instrument containing an order under subsection (3) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6) A direction under subsection (1) or (2) above may require that the transcript be made by the person who made the record or by such competent person as may be specified in the direction; and that person shall comply with the direction.

(7) A transcript made in compliance with a direction under subsection (1) or (2) above—

(a) shall be in legible form; and

(b) shall be certified by the person making it as being a correct and complete transcript of the whole or, as the case may be, the part of the record purporting to have been made and certified, and in the case of shorthand notes signed, by the person who made the record.

(8) The cost of making a transcript in compliance with a direction under subsection (1) or (2)(a) above shall be defrayed, in accordance with scales of payment fixed for the time being by the Treasury, out of money provided by Parliament.

(9) The Clerk of Justiciary shall, on payment of such charges as may be fixed for the time being by the Treasury, provide a copy of any documentary production lodged in connection with an appeal under this Part of this Act to such of the following persons as may request it—

(a) the prosecutor;

(b) any person convicted in the proceedings;

(c) any other person named in, or immediately affected by, any order made in the proceedings; and

(d) any person authorised to act on behalf of any of the persons mentioned in paragraphs (a) to (c) above.

Textual Amendments

F907 Word in s. 94(2)(a) added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 65(a)(i), 89; S.S.I. 2003/288, art. 2, Sch.

F908 Words s. 94(2)(b) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 65(a)(ii), 89; S.S.I. 2003/288, art. 2, Sch.

F909 S. 94(2A)-(2F) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 65(b), 89; S.S.I. 2003/288, art. 2, Sch.

F910 S. 94(2A)(b) substituted (12.11.2012) by Act of Adjournal (Amendment of the Criminal Procedure (Scotland) Act 1995) (Transcripts) 2012 (S.S.I. 2012/272), paras. 1(2), 2(2)(a) (with para. 3)

F911 Words in s. 94(2A) substituted (12.11.2012) by Act of Adjournal (Amendment of the Criminal Procedure (Scotland) Act 1995) (Transcripts) 2012 (S.S.I. 2012/272), paras. 1(2), 2(2)(b) (with para. 3)

F912 S. 94(2AZA) inserted (12.11.2012) by Act of Adjournal (Amendment of the Criminal Procedure (Scotland) Act 1995) (Transcripts) 2012 (S.S.I. 2012/272), paras. 1(2), 2(3) (with para. 3)

F913 S. 94(2AA)(2AB) inserted (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), s. 17(3), sch. para. 7; S.S.I. 2011/365, art. 3

F914 S. 94(2C)(aa) inserted (12.11.2012) by Act of Adjournal (Amendment of the Criminal Procedure (Scotland) Act 1995) (Transcripts) 2012 (S.S.I. 2012/272), paras. 1(2), 2(4) (with para. 3)

95 Verdict by judge alone. S

(1) Where, at any time after the jury has been sworn to serve in a trial, the prosecutor intimates to the court that he does not intend to proceed in respect of an offence charged in the indictment, the judge shall acquit the accused of that offence and the trial shall proceed only in respect of any other offence charged in the indictment.

(2) Where, at any time after the jury has been sworn to serve in a trial, the accused intimates to the court that he is prepared to tender a plea of guilty as libelled, or such other plea as the Crown is prepared to accept, in respect of any offence charged in the indictment, the judge shall accept the plea tendered and shall convict the accused accordingly.

(3) Where an accused is convicted under subsection (2) above of an offence—

(a) the trial shall proceed only in respect of any other offence charged in the indictment; and

(b) without prejudice to any other power of the court to adjourn the case or to defer sentence, the judge shall not sentence him or make any other order competent following conviction until a verdict has been returned in respect of every other offence mentioned in paragraph (a) above.

96 Amendment of indictment. S

(1) No trial shall fail or the ends of justice be allowed to be defeated by reason of any discrepancy or variance between the indictment and the evidence.

(2) It shall be competent at any time prior to the determination of the case, unless the court see just cause to the contrary, to amend the indictment by deletion, alteration or addition, so as to—

(a) cure any error or defect in it;

(b) meet any objection to it; or

(c) cure any discrepancy or variance between the indictment and the evidence.

(3) Nothing in this section shall authorise an amendment which changes the character of the offence charged, and, if it appears to the court that the accused may in any way be prejudiced in his defence on the merits of the case by any amendment made under this section, the court shall grant such remedy to the accused by adjournment or otherwise as appears to the court to be just.

(4) An amendment made under this section shall be sufficiently authenticated by the initials of the clerk of the court.

97 No case to answer. S

(1) Immediately after the close of the evidence for the prosecution, the accused may intimate to the court his desire to make a submission that he has no case to answer both—

(a) on an offence charged in the indictment; and

(b) on any other offence of which he could be convicted under the indictment.

(2) If, after hearing both parties, the judge is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of which the submission has been made or of such other offence as is mentioned, in relation to that offence, in paragraph (b) of subsection (1) above, he shall acquit him of the offence charged in respect of which the submission has been made and the trial shall proceed only in respect of any other offence charged in the indictment.

(3) If, after hearing both parties, the judge is not satisfied as is mentioned in subsection (2) above, he shall reject the submission and the trial shall proceed, with the accused entitled to give evidence and call witnesses, as if such submission had not been made.

(4) A submission under subsection (1) above shall be heard by the judge in the absence of the jury.

[F915 97A Submissions as to sufficiency of evidence S

(1) Immediately after one or other (but not both) of the appropriate events, the accused may make either or both of the submissions mentioned in subsection (2) in relation to an offence libelled in an indictment (the “indicted offence”).

(2) The submissions are—

(a) that the evidence is insufficient in law to justify the accused's being convicted of the indicted offence or any other offence of which the accused could be convicted under the indictment (a “related offence”),

(b) that there is no evidence to support some part of the circumstances set out in the indictment.

(3) For the purposes of subsection (1), “the appropriate events” are—

(a) the close of the whole of the evidence,

(b) the conclusion of the prosecutor's address to the jury on the evidence.

(4) A submission made under this section must be heard by the judge in the absence of the jury.

Textual Amendments

F915 Ss. 97A-97D inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 73, 206(1); S.S.I. 2011/178, art. 2, sch.

97B Acquittals etc. on section 97A(2)(a) submissions S

(1) This section applies where the accused makes a submission of the kind mentioned in section 97A(2)(a).

(2) If the judge is satisfied that the evidence is insufficient in law to justify the accused's being convicted of the indicted offence, then—

(a) where the judge is satisfied that the evidence is also insufficient in law to justify the accused's being convicted of a related offence—

(i) the judge must acquit the accused of the indicted offence, and

(ii) the trial is to proceed only in respect of any other offence libelled in the indictment,

(b) where the judge is satisfied that the evidence is sufficient in law to justify the accused's being convicted of a related offence, the judge must direct that the indictment be amended accordingly.

(3) If the judge is not satisfied as is mentioned in subsection (2)—

(a) the judge must reject the submission, and

(b) the trial is to proceed as if the submission had not been made.

(4) The judge may make a decision under this section only after hearing both (or all) parties.

(5) An amendment made by virtue of this section must be sufficiently authenticated by the initials of the judge or the clerk of court.

(6) In this section, “indicted offence” and “related offence” have the same meanings as in section 97A.

Textual Amendments

F915 Ss. 97A-97D inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 73, 206(1); S.S.I. 2011/178, art. 2, sch.

97C Directions etc. on section 97A(2)(b) submissions S

(1) This section applies where the accused makes a submission of the kind mentioned in section 97A(2)(b).

(2) If the judge is satisfied that there is no evidence to support some part of the circumstances set out in the indictment, the judge must direct that the indictment be amended accordingly.

(3) If the judge is not satisfied as is mentioned in subsection (2)—

(a) the judge must reject the submission, and

(b) the trial is to proceed as if the submission had not been made.

(4) The judge may make a decision under this section only after hearing both (or all) parties.

(5) An amendment made by virtue of this section must be sufficiently authenticated by the initials of the judge or the clerk of court.

Textual Amendments

F915 Ss. 97A-97D inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 73, 206(1); S.S.I. 2011/178, art. 2, sch.

97D No acquittal on “no reasonable jury” grounds S

(1) A judge has no power to direct the jury to return a not guilty verdict on any charge on the ground that no reasonable jury, properly directed on the evidence, could convict on the charge.

(2) Accordingly, no submission based on that ground or any ground of like effect is to be allowed.]

Textual Amendments

F915 Ss. 97A-97D inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 73, 206(1); S.S.I. 2011/178, art. 2, sch.

98 Defence to speak last. S

In any trial the accused or, where he is legally represented, his counsel or solicitor shall have the right to speak last.

99 Seclusion of jury to consider verdict. S

(1) When the jury retire to consider their verdict, the clerk of court shall enclose the jury in a room by themselves and, except in so far as provided for, or is made necessary, by an instruction under subsection (4) below, neither he nor any other person shall be present with the jury [F916 while] they are enclosed.

(2) Except in so far as is provided for, or is made necessary, by an instruction under subsection (4) below, [F917 while the jury are enclosed and until they] intimate that they are ready to return their verdict—

(a) subject to subsection (3) below, no person shall visit the jury or communicate with them; and

(b) no juror shall come out of the jury room other than to receive or seek a direction from the judge or to make a request—

(i) for an instruction under subsection (4)(a), (c) or (d) below; or

(ii) regarding any matter in the cause.

(3) Nothing in paragraph (a) of subsection (2) above shall prohibit the judge, or any person authorised by him for the purpose, communicating with the jury for the purposes—

(a) of giving a direction, whether or not sought under paragraph (b) of that subsection; or

(b) responding to a request made under that paragraph.

(4) The judge may give such instructions as he considers appropriate as regards—

(a) the provision of meals and refreshments for the jury;

(b) the making of arrangements for overnight accommodation for the jury and [F918 , unless under subsection (7) below the court permits them to separate,] for their continued seclusion if such accommodation is provided;

(c) the communication of a personal or business message, unconnected with any matter in the cause, from a juror to another person (or vice versa); or

(d) the provision of medical treatment, or other assistance, immediately required by a juror.

(5) If the prosecutor or any other person contravenes the provisions of this section, the accused shall be acquitted of the crime with which he is charged.

(6) During the period in which the jury are retired to consider their verdict, the judge may sit in any other proceedings; and the trial shall not fail by reason only of his so doing.

[F919 (7) The court may, if it thinks fit, permit the jury to separate even after they have retired to consider their verdict.]

Textual Amendments

F916 Word in s. 99(1) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 79(a), 89; S.S.I. 2003/288, art. 2, Sch.

F917 Words in s. 99(2) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 79(b), 89; S.S.I. 2003/288, art. 2, Sch.

F918 Words in s. 99(4)(b) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 79(c), 89; S.S.I. 2003/288, art. 2, Sch.

F919 S. 99(7) added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 79(d), 89; S.S.I. 2003/288, art. 2, Sch.

Verdict and conviction S

100 Verdict of jury. S

(1) The verdict of the jury, whether the jury are unanimous or not, shall be returned orally by the foreman of the jury unless the court directs a written verdict to be returned.

(2) Where the jury are not unanimous in their verdict, the foreman shall announce that fact so that the relative entry may be made in the record.

(3) The verdict of the jury may be given orally through the foreman of the jury after consultation in the jury box without the necessity for the jury to retire.

101 Previous convictions: solemn proceedings. S

(1) Previous convictions against the accused shall not [F920 , subject to subsection (2) below and section 275A(2) of this Act,] be laid before the jury, nor shall reference be made to them in presence of the jury before the verdict is returned.

(2) Nothing in subsection (1) above shall prevent the prosecutor—

(a) asking the accused questions tending to show that he has been convicted of an offence other than that with which he is charged, where he is entitled to do so under section 266 of this Act; or

(b) leading evidence of previous convictions where it is competent to do so under section 270 of this Act,

and nothing in this section or in section 69 of this Act shall prevent evidence of previous convictions being led in any case where such evidence is competent in support of a substantive charge.

(3) Previous convictions shall not [F921 , subject to section 275A(1) of this Act,] be laid before the presiding judge until the prosecutor moves

[F922 (a)] for sentence [F923 ; or]

[F924 (b) for a risk assessment order (or the court at its own instance proposes to make such an order)],

and in that event the prosecutor shall lay before the judge a copy of the notice referred to in subsection (2) or (4) of section 69 of this Act.

[F925 (3A) Where, under paragraph (b) of subsection (3) above, the prosecutor lays previous convictions before the judge, he shall also provide the judge with such details regarding the offences in question as are available to him.]

(4) On the conviction of the accused it shall be competent for the court, subject to subsection (5) below, to amend a notice of previous convictions so laid by deletion or alteration for the purpose of curing any error or defect.

F926 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) Any conviction which is admitted in evidence by the court shall be entered in the record of the trial.

(7) Where a person is convicted of an offence, the court may have regard to any previous conviction in respect of that person in deciding on the disposal of the case.

(8) Where any such intimation as is mentioned in section 69 of this Act is given by the accused, it shall be competent to prove any previous conviction included in a notice under that section in the manner specified in section 285 [F927 , or as the case may be 286A,] of this Act, and the provisions of the [F928 section in question] shall apply accordingly.

[F929 (9) This section, except subsection (2) above, applies in relation to the alternative disposals mentioned in subsection (10) below as it applies in relation to previous convictions.

(10) Those alternative disposals are—

(a) a—

(i) fixed penalty under section 302(1) of this Act;

(ii) compensation offer under section 302A(1) of this Act,

that has been accepted (or deemed to have been accepted) by the accused in the two years preceding the date of an offence charged;

(b) a work order under section 303ZA(6) of this Act that has been completed in the two years preceding the date of an offence charged[F930 ;

(c) a restoration notice given under subsection (4) of section 20A of the Nature Conservation (Scotland) Act 2004 (asp 6) in respect of which the accused has given notice of intention to comply under subsection (5) of that section in the two years preceding the date of an offence charged.]

(11) Nothing in this section or in section 69 of this Act shall prevent the prosecutor, following conviction of an accused of an offence—

(a) to which a fixed penalty offer made under section 302(1) of this Act related;

(b) to which a compensation offer made under section 302A(1) of this Act related; F931 ...

(c) to which a work offer made under section 303ZA(1) of this Act related[F932 ; or

(d) to which a restoration notice given under section 20A(4) of the Nature Conservation (Scotland) Act 2004 (asp 6) related,]

providing the judge with information about the making of the offer (including the terms of the offer) [F933 or, as the case may be, about the giving of the notice (including the terms of the notice).]]

[F934 (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.]

Textual Amendments

F920 Words in s. 101(1) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 10(1)(a); S.S.I. 2002/443, art. 3 (with art. 4(5))

F921 Words in s. 101(3) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 10(1)(b); S.S.I. 2002/443, art. 3 (with art. 4(5))

F922 Words in s. 101(3) renumbered as s. 101(3)(a) (19.6.2006) by virtue of Criminal Justice (Scotland) Act 2003 (asp 7), ss. 1(2), 89, Sch. 1 para. 2(3)(a); S.S.I. 2006/332, art. 2(1)(2)

F923 Word in s. 101(3) inserted (19.6.2006) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 1(2), 89, Sch. 1 para. 2(3)(a); S.S.I. 2006/332, art. 2(1)(2)

F924 S. 101(3)(b) inserted (19.6.2006) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 1(2), 89, Sch. 1 para. 2(3)(a); S.S.I. 2006/332, art. 2(1)(2)

F925 S. 101(3A) inserted (19.6.2006) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 1(2), 89, Sch. 1 para. 2(3)(b); S.S.I. 2006/332, art. 2(1)(2)

F926 S. 101(5) repealed (1.8.1997) by 1997 c. 48, ss. 31, 62(2), Sch. 3; S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F927 Words in s. 101(8) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 57(2)(a), 89; S.S.I. 2003/288, art. 2, Sch.

F928 Words in s. 101(8) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 57(2)(b), 89; S.S.I. 2003/288, art. 2, Sch.

F929 S. 101(9)-(11) added (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 53(2), 84; S.S.I. 2008/42, art. 3, Sch.

F930 S. 101(10)(c) and semi colon inserted (29.6.2011) by Wildlife and Natural Environment (Scotland) Act 2011 (asp 6), ss. 40(3)(b)(i), 43(1) (with s. 41(1)); S.S.I. 2011/279, art. 2(1)(q)

F931 Word in s. 101(11) repealed (29.6.2011) by Wildlife and Natural Environment (Scotland) Act 2011 (asp 6), ss. 40(3)(b)(ii)(A), 43(1) (with s. 41(1)); S.S.I. 2011/279, art. 2(1)(q)

F932 S. 101(11)(d) and word inserted (29.6.2011) by Wildlife and Natural Environment (Scotland) Act 2011 (asp 6), ss. 40(3)(b)(ii)(B), 43(1) (with s. 41(1)); S.S.I. 2011/279, art. 2(1)(q)

F933 Words in s. 101(11) inserted (29.6.2011) by Wildlife and Natural Environment (Scotland) Act 2011 (asp 6), ss. 40(3)(b)(ii)(C), 43(1) (with s. 41(1)); S.S.I. 2011/279, art. 2(1)(q)

F934 S. 101(12) inserted (31.12.2020) by The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 13(6) (with reg. 16)

[F935 101A Post-offence convictions etc. S

(1) This section applies where an accused person is convicted of an offence (“offence O”) on indictment.

(2) The court may, in deciding on the disposal of the case, have regard to—

(a) any conviction in respect of the accused which occurred on or after the date of offence O but before the date of conviction in respect of that offence,

(b) any of the alternative disposals in respect of the accused that are mentioned in subsection (3).

(3) Those alternative disposals are—

(a) a—

(i) fixed penalty under section 302(1) of this Act, or

(ii) compensation offer under section 302A(1) of this Act,

that has been accepted (or deemed to have been accepted) on or after the date of offence O but before the date of conviction in respect of that offence,

(b) a work order under section 303ZA(6) of this Act that has been completed on or after the date of offence O but before the date of conviction in respect of that offence.

(4) The court may have regard to any such conviction or alternative disposal only if it is—

(a) specified in a notice laid before the court by the prosecutor, and

(b) admitted by the accused or proved by the prosecutor (on evidence adduced then or at another diet).

(5) A reference in this section to a conviction which occurred on or after the date of offence O is a reference to such a conviction by a court in any part of the United Kingdom or [F936 , where the court considers appropriate, in any] member State of the European Union.]

Textual Amendments

F935 S. 101A inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 70(1), 206(1); S.S.I. 2011/178, art. 2, sch.

F936 Words in s. 101A(5) substituted (31.12.2020) by The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 13(7) (with reg. 16)

102 Interruption of trial for other proceedings. S

(1) When the jury have retired to consider their verdict, and the diet in another criminal cause has been called, then, subject to subsection (3) below, if it appears to the judge presiding at the trial to be appropriate, he may interrupt the proceedings in such other cause—

(a) in order to receive the verdict of the jury in the preceding trial, and thereafter to dispose of the case;

(b) to give a direction to the jury in the preceding trial upon any matter upon which the jury may wish a direction from the judge or to hear any request from the jury regarding any matter in the cause.

(2) Where in any case the diet of which has not been called, the accused intimates to the clerk of court that he is prepared to tender a plea of guilty as libelled or such qualified plea as the Crown is prepared to accept, or where a case is remitted to the High Court for sentence, then, subject to subsection (3) below, any trial then proceeding may be interrupted for the purpose of receiving such plea or dealing with the remitted case and pronouncing sentence or otherwise disposing of any such case.

(3) In no case shall any proceedings in the preceding trial take place in the presence of the jury in the interrupted trial, but in every case that jury shall be directed to retire by the presiding judge.

(4) On the interrupted trial being resumed the diet shall be called de novo.

(5) In any case an interruption under this section shall not be deemed an irregularity, nor entitle the accused to take any objection to the proceedings.

[F937 Failure of accused to appear S

Textual Amendments

F937 S. 102A inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 32, 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

102A Failure of accused to appear S

(1) In proceedings on indictment, an accused person who without reasonable excuse fails to appear at a diet of which the accused has been given due notice (apart from a diet which the accused is not required to attend) is—

(a) guilty of an offence; and

(b) liable on conviction on indictment to a fine or to imprisonment for a period not exceeding 5 years or to both.

(2) In proceedings on indictment, where an accused person fails to appear at a diet of which the accused has been given due notice (apart from a diet which the accused is not required to attend), the court may grant a warrant to apprehend the accused.

(3) It is not, otherwise than under subsection (2) above, competent in any proceedings on indictment for a court to grant a warrant for the apprehension of an accused person for failure to appear at a diet.

(4) However, it remains competent for a court to grant a warrant on petition (as referred to in section 34 of this Act) in respect of an offence under—

(a) subsection (1) above;

[F938 (b) section 27(7) of this Act,]

whether or not a warrant has been granted under subsection (2) above in respect of the same failure to appear to which that offence relates.

(5) Where a warrant to apprehend an accused person is granted under subsection (2) above [F939 at any stage prior to conviction], the indictment falls as respects that accused.

(6) Subsection (5) above is subject to any order to different effect made by the court when granting the warrant.

(7) An order under subsection (6) above—

(a) for the purpose of proceeding with the trial in the absence of the accused under section 92(2A) (where the warrant is granted at a trial diet), may be made on the motion of the prosecutor;

(b) for any other purpose, may be made on the motion of the prosecutor or of the court's own accord.

(8) A warrant granted under subsection (2) above shall be in such form as may be prescribed by Act of Adjournal or as nearly as may be in such form.

(9) A warrant granted under subsection (2) above (in the form mentioned in subsection (8) above) shall imply warrant to officers of law—

(a) to search for and apprehend the accused;

(b) to bring the accused before the court;

(c) in the meantime, to detain the accused in a police station, police cell or other convenient place; and

(d) so far as is necessary for the execution of the warrant, to break open shut and lockfast places.

(10) An accused apprehended under a warrant granted under subsection (2) above shall wherever practicable be brought before the court not later than in the course of the first day on which the court is sitting after the accused is taken into custody.

(11) Where the accused is brought before the court in pursuance of a warrant granted under subsection (2) above, the court shall make an order—

(a) detaining the accused until liberated in due course of law; or

(b) releasing the accused on bail.

(12) For the purposes of subsection (11) above, the court is to have regard to the terms of the indictment in relation to which the warrant was granted even if that indictment has fallen.

(13) In a case where a warrant is granted under subsection (2) above, any period of time during which the accused was detained in custody—

(a) as regards that case; and

(b) prior to the making of an order under subsection (11) above,

does not count towards any time limit applying in that case by virtue of section 65(4) of this Act.

(14) For the purposes of subsection (13) above—

(a) detention as regards a case includes, in addition to detention as regards the indictment in relation to which the warrant was granted (whether or not that indictment has fallen), detention as regards any preceding petition;

(b) it is immaterial whether or not further proceedings are on a fresh indictment.

(15) At any time before the trial of an accused person on indictment, it is competent—

(a) to amend the indictment so as to include an additional charge of an offence under subsection (1) above;

(b) to include, in the list of witnesses or productions associated with the indictment, witnesses or productions relating to that offence.

(16) In this section, “ the court ” means—

(a) where the accused failed to appear at the High Court—

(i) for the purposes of subsections (10) to (12) above, that Court (whether or not constituted by a single judge);

(ii) otherwise, a single judge of that Court;

(b) where the accused failed to appear at a sheriff court, any sheriff court with jurisdiction in relation to the proceedings.]

Textual Amendments

F938 S. 102A(4)(b) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 50; S.S.I. 2011/178, art. 2, sch.

F939 Words in s. 102A(5) inserted (10.3.2008) by The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (Supplemental Provisions) Order 2008 (S.S.I. 2008/109), art. 2(b)

PART VIII S Appeals from Solemn Proceedings

Modifications etc. (not altering text)

C81 Pt. 8 (ss. 103-132): power to modify or apply (with modifications) conferred (1.3.2007) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10) , ss. 94(2) , 104 ; S.S.I. 2007/84 , art. 3(2)

103 Appeal sittings. S

(1) The High Court shall hold both during session and during vacation such sittings as are necessary for the disposal of appeals and other proceedings under this Part of this Act.

(2) Subject to subsection (3) below, for the purpose of hearing and determining any appeal or other proceeding under this Part of this Act three of the Lords Commissioners of Justiciary shall be a quorum of the High Court, and the determination of any question under this Part of this Act by the court shall be according to the votes of the majority of the members of the court sitting, including the presiding judge, and each judge so sitting shall be entitled to pronounce a separate opinion.

(3) For the purpose of hearing and determining any appeal under section 106(1)(b) to (e) of this Act, or any proceeding connected therewith, two of the Lords Commissioners of Justiciary shall be a quorum of the High Court, and each judge shall be entitled to pronounce a separate opinion; but where the two Lords Commissioners of Justiciary are unable to reach agreement on the disposal of the appeal, or where they consider it appropriate, the appeal shall be heard and determined in accordance with [F940 subsection (2)] above.

(4) Subsections (1) [F941 to (3)] above shall apply to cases certified to the High Court by a single judge of the said court and to appeals by way of advocation in like manner as they apply to appeals under this Part of this Act.

(5) The powers of the High Court under this Part of this Act—

(a) to extend the time within which intimation of intention to appeal and note of appeal may be given;

(b) to allow the appellant to be present at any proceedings in cases where he is not entitled to be present without leave; and

(c) to admit an appellant to bail,

may be exercised by any judge of the High Court, sitting and acting wherever convenient, in the same manner as they may be exercised by the High Court, and subject to the same provisions.

(6) Where a judge acting under subsection (5) above refuses an application by an appellant to exercise under that subsection any power in his favour, the appellant shall be entitled to have the application determined by the High Court.

[F942 (6A) Where a judge acting under subsection (5)(c) above grants an application by an appellant to exercise that power in his favour, the prosecutor shall be entitled to have the application determined by the High Court.]

(7) Subject to subsection (5) [F943 , (6) and (6A)] above and without prejudice to it, preliminary and interlocutory proceedings incidental to any appeal or application may be disposed of by a single judge.

(8) In all proceedings before a judge under section (5) above, and in all preliminary and interlocutory proceedings and applications except such as are heard before the full court, the parties may be represented and appear by a solicitor alone.

Textual Amendments

F940 Words in s. 103(3) substituted (1.8.1997) by 1997 c. 48 , s. 62(1) , Sch. 1 para. 21(13)(a) ; S.I. 1997/1712 , art. 3 , Sch. (subject to arts. 4 , 5 )

F941 Words in s. 103(4) substituted (1.8.1997) by 1997 c. 48 , s. 62(1) , Sch. 1 para. 21(13)(b) ; S.I. 1997/1712 , art. 3 , Sch. (subject to arts. 4 , 5 )

F942 S. 103(6A) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 66(2)(a) , 89 ; S.S.I. 2003/288 , art. 2 , Sch.

F943 Words in s. 103(7) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 66(2)(b) , 89 ; S.S.I. 2003/288 , art. 2 , Sch.

104 Power of High Court in appeals. S

(1) Without prejudice to any existing power of the High Court, it may for the purposes of an appeal under section 106(1)[F944 , 107A, 107B] or 108 of this Act—

(a) order the production of any document or other thing connected with the proceedings;

(b) hear any F945 . . .evidence relevant to any alleged miscarriage of justice or order such evidence to be heard by a judge of the High Court or by such other person as it may appoint for that purpose;

(c) take account of any circumstances relevant to the case which were not before the trial judge;

(d) remit to any fit person to enquire and report in regard to any matter or circumstance affecting the appeal;

(e) appoint a person with expert knowledge to act as assessor to the High Court in any case where it appears to the court that such expert knowledge is required for the proper determination of the case.

(2) The evidence of any witnesses ordered to be examined before the High Court or before any judge of the High Court or other person appointed by the High Court shall be taken in accordance with the existing law and practice as to the taking of evidence in criminal trials in Scotland.

(3) The appellant or applicant and the respondent or counsel on their behalf shall be entitled to be present at and take part in any examination of any witness to which this section relates.

Textual Amendments

F944 Words in s. 104(1) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 75, 206(1); S.S.I. 2011/178, art. 2, sch.

F945 Word in s. 104(1)(b) repealed (1.8.1997) by 1997 c. 48 , s. 62(1)(2) , Sch. 1 para. 21(14) , Sch. 3 ; S.I. 1997/1712 , art. 3 , Sch. (subject to arts. 4 , 5 )

105 Appeal against refusal of application. S

(1) When an application or applications have been dealt with by a judge of the High Court, under section 103(5) of this Act, the Clerk of Justiciary shall—

(a) notify to the applicant the decision in the form prescribed by Act of Adjournal or as nearly as may be in such form; and

(b) where all or any of such applications have been refused, forward to the applicant the prescribed form for completion and return forthwith if he desires to have the application or applications determined by the High Court as fully constituted for the hearing of appeals under this Part of this Act.

(2) Where the applicant does not desire a determination as mentioned in subsection (1)(b) above, or does not return within five days to the Clerk the form duly completed by him, the refusal of his application or applications by the judge shall be final.

(3) Where an applicant who desires a determination by the High Court as mentioned in subsection (1)(b) above—

(a) is not legally represented, he may be present at the hearing and determination by the High Court of the application;

(b) is legally represented, he shall not be entitled to be present without leave of the court.

[F946 (3A) Subsection (3) does not entitle an applicant to be present at the hearing and determination of an application under section 111(2) unless the High Court has made a direction under section 111(4)(b).]

(4) When an applicant duly completes and returns to the Clerk of Justiciary within the prescribed time the form expressing a desire to be present at the hearing and determination by the court of the applications mentioned in this section, the form shall be deemed to be an application by the applicant for leave to be so present, and the Clerk of Justiciary, on receiving the form, shall take the necessary steps for placing the application before the court.

[F947 (4A) An application by a convicted person for a determination by the High Court of a decision of a judge acting under section 103(5)(c) of this Act to refuse to admit him to bail shall be intimated by him immediately and in writing to the Crown Agent.]

(5) If the application to be present is refused by the court, the Clerk of Justiciary shall notify the applicant; and if the application is granted, he shall notify the applicant and the Governor of the prison where the applicant is in custody and the Secretary of State.

(6) For the purpose of constituting a Court of Appeal, the judge who has refused any application may sit as a member of the court, and take part in determining the application.

Textual Amendments

F946 S. 105(3A) inserted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 90(1), 117(2); S.S.I. 2016/426, art. 2, sch.

F947 S. 105(4A) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 66(3) , 89 ; S.S.I. 2003/288 , art. 2 , Sch.

[F948 105A Appeal against granting of application S

(1) Where the prosecutor desires a determination by the High Court as mentioned in subsection (6A) of section 103 of this Act, he shall apply to the judge immediately after the power in subsection (5)(c) of that section is exercised in favour of the appellant.

(2) Where a judge acting under section 103(5)(c) of this Act has exercised that power in favour of the appellant but the prosecutor has made an application under subsection (1) above—

(a) the appellant shall not be liberated until the determination by the High Court; and

(b) that application by the prosecutor shall be heard not more than seven days after the making of the application,

and the Clerk of the Justiciary shall forward to the appellant the prescribed form for completion and return forthwith if he desires to be present at the hearing.

(3) At a hearing and determination as mentioned in subsection (2) above, if the appellant—

(a) is not legally represented, he may be present;

(b) is legally represented, he shall not be entitled to be present without leave of the court.

(4) If the appellant completes and returns the form mentioned in subsection (2) above indicating a desire to be present at the hearing, the form shall be deemed to be an application by the appellant for leave to be so present, and the Clerk of Justiciary, on receiving the form, shall take the necessary steps for placing the application before the court.

(5) If the application to be present is refused by the court, the Clerk of Justiciary shall notify the appellant; and if the application is granted, he shall notify the appellant and the Governor of the prison where the applicant is in custody and the Scottish Ministers.

(6) For the purposes of constituting a Court of Appeal, the judge who exercised the power in section 103(5)(c) of this Act in favour of the appellant may sit as a member of the court, and take part in determining the application of the prosecutor.]

Textual Amendments

F948 S. 105A inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 66(4) , 89 ; S.S.I. 2003/288 , art. 2 , Sch.

106 Right of appeal. S

(1) Any person convicted on indictment may, with leave granted in accordance with section 107 of this Act, appeal in accordance with this Part of this Act, to the High Court—

(a) against such conviction;

(b) subject to subsection (2) below, against the sentence passed on such conviction;

[F949 (ba) against the making of an order for lifelong restriction;]

[F950 (bb) against any decision not to exercise the power conferred by section 205A(3), [F951 or 205B(3)] of this Act;]

(c) against his absolute discharge or admonition;

[F952 (d) against any drug treatment and testing order;

(dza) against any disposal under section 227ZC(7)(a) to (c) or (e) or (8)(a) of this Act;]

[F953 (da) against any decision to remit made under section 49(1)(a) of this Act;]

F954 (db) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F954 (dc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) against any order deferring sentence; or

(f) against

[F955 (i)] both such conviction and, subject to subsection (2) below, such sentence or disposal or order.

F956 (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F956 (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) There shall be no appeal against any sentence fixed by law.

[F957 (3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on—

(a) subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings; and

(b) the jury’s having returned a verdict which no reasonable jury, properly directed, could have returned.

(3A) Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard.

(3B) Where the explanation referred to in subsection (3A) above or, as the case may be, (3C) below is that the evidence was not admissible at the time of the original proceedings, but is admissible at the time of the appeal, the court may admit that evidence if it appears to the court that it would be in the interests of justice to do so.

(3C) Without prejudice to subsection (3A) above, where evidence such as is mentioned in paragraph (a) of subsection (3) above is evidence—

(a) which is—

(i) from a person; or

(ii) of a statement (within the meaning of section 259(1) of this Act) by a person,

who gave evidence at the original proceedings; and

(b) which is different from, or additional to, the evidence so given,

it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.

(3D) For the purposes of subsection (3C) above, “ independent evidence ” means evidence which—

(a) was not heard at the original proceedings;

(b) is from a source independent of the person referred to in subsection (3C) above; and

(c) is accepted by the court as being credible and reliable.]

(4) Any document, production or other thing lodged in connection with the proceedings on the trial of any person who, if convicted, is entitled or may be authorised to appeal under this Part of this Act, shall, in accordance with subsections (5) to (9) below, be kept in the custody of the court in which the conviction took place.

(5) All documents and other productions produced at the trial of a convicted person shall be kept in the custody of the court of trial in such manner as it may direct until any period allowed under or by virtue of this Part of this Act for lodging intimation of intention to appeal has elapsed.

(6) Where no direction is given as mentioned in subsection (5) above, such custody shall be in the hands of the sheriff clerk of the district of the court of the second diet to whom the clerk of court shall hand them over at the close of the trial, unless otherwise ordered by the High Court on an intimation of intention to appeal being lodged, and if within such period there has been such lodgement under this Part of this Act, they shall be so kept until the appeal, if it is proceeded with, is determined.

(7) Notwithstanding subsections (5) and (6) above, the judge of the court in which the conviction took place may, on cause shown, grant an order authorising any of such documents or productions to be released on such conditions as to custody and return as he may deem it proper to prescribe.

(8) All such documents or other productions so retained in custody or released and returned shall, under supervision of the custodian thereof, be made available for inspection and for the purpose of making copies of documents or productions to a person who has lodged an intimation of intention to appeal or as the case may be, to the convicted person’s counsel or agent, and to the Crown Agent and the procurator fiscal or his deputes.

(9) Where no intimation of intention to appeal is lodged within the period mentioned in subsection (6) above, all such documents and productions shall be dealt with as they are dealt with according to the existing law and practice at the conclusion of a trial; and they shall be so dealt with if, there having been such intimation, the appeal is not proceeded with.

Textual Amendments

F949 S. 106(1)(ba) inserted (19.6.2006 for certain purpose and otherwise prosp.) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 1(2), 89, Sch. 1 para. 2(4); S.S.I. 2006/332, art. 2

F950 S. 106(1)(bb) inserted (20.10.1997) by 1997 c. 48, s. 18(1); S.I. 1997/2323, art. 3, Sch. 1

F951 Words in s. 106(1)(bb) substituted (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 para. 119; S.I. 1998/2327, art. 2(1)(y)(2)(kk)

F952 S. 106(1)(d)(dza) substituted for s. 106(1)(d) (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 7; S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F953 S. 106(1)(da) inserted (1.8.1997) by 1997 c. 48, s. 23(b); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4 , 5)

F954 S. 106(1)(db) (dc) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 14(a) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F955 Words in s. 106(1)(f) become s. 106(1)(f)(i) (10.1.2005) by virtue of Protection of Children (Scotland) Act 2003 (asp 5), ss. 16(2)(b), 22(2); S.S.I. 2004/522, art. 2

F956 S. 106(1)(f)(ii) (iii) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 14(b) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F957 S. 106(3)-(3D) substituted (1.8.1997) for s. 106(3) by 1997 c. 48, s. 17(1); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4 , 5)

Modifications etc. (not altering text)

C82 S. 106 amended (1.4.1996) by 1995 c. 43, ss. 10(5), 50(2)

S. 106 amended (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 100(7), 458; S.S.I. 2003/210, art. 2 (with arts. 3-7)

C83 S. 106 extended (19.2.2001) by 2000 c. 11, ss. 7(4)(b), 8(1)(c)(ii); S.I. 2001/421, art. 2

S. 106 extended (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 12(5)(c)

C84 S. 106 extended (15.12.2011) by Terrorism Prevention and Investigation Measures Act 2011 (c. 23), s. 31(2), Sch. 3 para. 4(3)(c) (with Sch. 8)

C85 S. 106 extended (12.2.2015) by Counter Terrorism and Security Act 2015 (c. 6), s. 52(5), Sch. 4 para. 4(3)(c)

C86 S. 106 extended (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 9 para. 4(3)(c) (with s. 97); S.I. 2023/1272, reg. 2(b)

[F958 106A Appeal against automatic sentences where earlier conviction quashed. S

(1) This subsection applies where—

(a) a person has been sentenced under section 205A(2) of this Act;

(b) he had, at the time at which the offence for which he was so sentenced was committed, only one previous conviction for a qualifying offence or a relevant offence within the meaning of that section; and

(c) after he has been so sentenced, the conviction mentioned in paragraph (b) above has been quashed.

(2) This subsection applies where—

(a) a person has been sentenced under section 205B(2) of this Act;

(b) he had, at the time at which the offence for which he was so sentenced was committed, only two previous convictions for class A drug trafficking offences within the meaning of that section; and

(c) after he has been so sentenced, one of the convictions mentioned in paragraph (b) above has been quashed.

(3) Where subsection (1) or (2) above applies, the person may appeal under section 106(1)(b) of this Act against the sentence imposed on him under section 205A(2) or, as the case may be, 205B(2) of this Act.

(4) An appeal under section 106(1)(b) of this Act by virtue of subsection (3) above—

(a) may be made notwithstanding that the person has previously appealed under that section; and

(b) shall be lodged within two weeks of the quashing of the conviction as mentioned in subsection (1)(c) or, as the case may be, (2)(c) above.

(5) Where an appeal is made under section 106(1)(b) by virtue of this section, the following provisions of this Act shall not apply in relation to such an appeal, namely—

(a) section 121; and

(b) section 126.]

Textual Amendments

F958 S. 106A inserted (20.10.1997 for specified purposes and otherwise prosp.) by 1997 c. 48 , ss. 19(1) , 65(2) ; S.I. 1997/2323 , art. 3 , Sch. 1

107 Leave to appeal. S

(1) The decision whether to grant leave to appeal for the purposes of section 106(1) of this Act shall be made by a judge of the High Court who shall—

(a) if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and

(b) in any other case—

(i) refuse leave to appeal and give reasons in writing for the refusal; and

(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.

(2) The documents referred to in subsection (1) above are—

(a) the note of appeal lodged under section 110(1)(a) of this Act;

(b) in the case of an appeal against conviction or sentence in a sheriff court, the certified copy or, as the case may be, the record of the proceedings at the trial;

(c) where the judge who presided at the trial furnishes a report under section 113 of this Act, that report; and

(d) where, by virtue of section 94(1) of this Act, a transcript of the charge to the jury of the judge who presided at the trial is delivered to the Clerk of Justiciary, that transcript.

[F959 (2A) In respect of an appeal by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16), the “report under section 113” in subsection (2)(c) means—

(a) the report of the judge who presided at the trial resulting in the appellant's acquittal for an offence mentioned in section 11(2) of that Act;

(b) where an appeal against conviction was taken before that acquittal, the report of the judge who presided at the trial resulting in the conviction in respect of which leave to appeal is sought prepared at that time; and

(c) any other report of that judge furnished under section 113.]

(3) A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (4) below [F960 (and if that period is extended under subsection (4A) below before the period being extended expires, until the expiry of the period as so extended)] without an application to the High Court for leave to appeal having been lodged by the appellant under [F961 subsection (4)] .

(4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under [F962 subsection (10)] below, apply to the High Court for leave to appeal.

[F963 (4A) The High Court may, on cause shown, extend the period of 14 days mentioned in subsection (4) above, or that period as extended under this subsection, whether or not the period to be extended has expired (and if that period of 14 days has expired, whether or not it expired before section 62 of the Criminal Justice (Scotland) Act 2003 (asp 7) came into force).]

(5) In deciding an application under subsection (4) above the High Court shall—

(a) if, after considering the documents mentioned in subsection (2) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and

(b) in any other case—

(i) refuse leave to appeal and give reasons in writing for the refusal; and

(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.

(6) Consideration whether to grant leave to appeal under subsection (1) or (5) above shall take place in chambers without the parties being present.

(7) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.

(8) Where the arguable grounds of appeal are specified by virtue of subsection (7) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.

(9) Any application by the appellant for the leave of the High Court under subsection (8) above—

(a) shall be made [F964 within 14 days of the date of intimation under subsection (10) below] ; and

(b) shall, [F965 within 14 days of] that date, be intimated by the appellant to the Crown Agent.

[F966 (9A) The High Court may, on cause shown, extend the periods of 14 days mentioned in subsection (9) above.]

(10) The Clerk of Justiciary shall forthwith intimate—

(a) a decision under subsection (1) or (5) above; and

(b) in the case of a refusal of leave to appeal, the reasons for the decision,

to the appellant or his solicitor and to the Crown Agent.

Textual Amendments

F959 S. 107(2A) inserted (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), s. 17(3), sch. para. 8; S.S.I. 2011/365, art. 3

F960 Words in s. 107(3) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003(asp 7), {ss. 62(a)(i)}, 89; S.S.I. 2003.288, {art. 2}

F961 Words in s. 107(3) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 62(a)(ii) , 89 ; S.S.I. 2003/288 , art. 2

F962 Words in s. 107(4) substituted (1.8.1997) by 1997 c. 48 , s. 62(1) , Sch. 1 para. 21(15) ; S.I. 1997/1712 , art. 3 , Sch. (subject to arts. 4 , 5 )

F963 S. 107(4A) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 62(b) , 89 ; S.S.I. 2003/288 , art. 2

F964 Words in s. 107(9)(a) substituted (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 80 , 84 , Sch. para. 16(1)(a)(i) ; S.S.I. 2007/250 , art. 3(i) (subject to art. 4(2) )

F965 Words in s. 107(9)(b) substituted (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 80 , 84 , Sch. para. 16(1)(a)(ii) ; S.S.I. 2007/250 , art. 3(i) (subject to art. 4(2) )

F966 S. 107(9A) inserted (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 80 , 84 , Sch. para. 16(1)(b) ; S.S.I. 2007/250 , art. 3(i) (subject to art. 4(2) )

Modifications etc. (not altering text)

C87 S. 107 applied (with modifications) (26.8.2002) by Act of Adjournal (Criminal Procedure Rules) 1996 (S.I. 1996/513) , rule 15 .15(4) (as inserted (26.8.2002) by Act of Adjournal (Criminal Appeals) 2002 (S.S.I. 2002/387) , para. 3(4) )

C88 S. 107(1)(a) modified (27.10.2003) by S.I. 1996/513 , rule 19B .1(3) (as inserted by Act of Adjournal (Criminal Procedure Rules Amendment No. 2) (Miscellaneous) 2003 (S.S.I. 2003/468) , rule 2(10) )

[F967 107A Prosecutor's right of appeal: decisions on section 97 and 97A submissions S

(1) The prosecutor may appeal to the High Court against—

(a) an acquittal under section 97 or 97B(2)(a), or

(b) a direction under section 97B(2)(b) or 97C(2).

(2) If, immediately after an acquittal under section 97 or 97B(2)(a), the prosecutor moves for the trial diet to be adjourned for no more than 2 days in order to consider whether to appeal against the acquittal under subsection (1), the court of first instance must grant the motion unless the court considers that there are no arguable grounds of appeal.

(3) If, immediately after the giving of a direction under section 97B(2)(b) or 97C(2), the prosecutor moves for the trial diet to be adjourned for no more than 2 days in order to consider whether to appeal against the direction under subsection (1), the court of first instance must grant the motion unless the court considers that it would not be in the interests of justice to do so.

(4) In considering whether it would be in the interests of justice to grant a motion for adjournment under subsection (3), the court must have regard, amongst other things, to—

(a) whether, if an appeal were to be made and to be successful, continuing with the diet would have any impact on any subsequent or continued prosecution,

(b) whether there are any arguable grounds of appeal.

(5) An appeal may not be brought under subsection (1) unless the prosecutor intimates intention to appeal—

(a) immediately after the acquittal or, as the case may be, the giving of the direction,

(b) if a motion to adjourn the trial diet under subsection (2) or (3) is granted, immediately upon resumption of the diet, or

(c) if such a motion is refused, immediately after the refusal.

(6) Subsection (7) applies if—

(a) the prosecutor intimates an intention to appeal under subsection (1)(a), or

(b) the trial diet is adjourned under subsection (2).

(7) Where this subsection applies, the court of first instance must suspend the effect of the acquittal and may—

(a) make an order under section 4(2) of the Contempt of Court Act 1981 (c.49) (which gives a court power, in some circumstances, to order that publication of certain reports be postponed) as if proceedings for the offence of which the person was acquitted were pending or imminent,

(b) after giving the parties an opportunity of being heard, order the detention of the person in custody or admit him to bail.

(8) The court may, under subsection (7)(b), order the detention of the person in custody only if the court considers that there are arguable grounds of appeal.

Textual Amendments

F967 Ss. 107A-107F inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 74, 206(1); S.S.I. 2011/178, art. 2, sch.

107B Prosecutor's right of appeal: decisions on admissibility of evidence S

(1) The prosecutor may appeal to the High Court against a finding, made after the jury is empanelled and before the close of the evidence for the prosecution, that evidence that the prosecution seeks to lead is inadmissible.

(2) The appeal may be made only with the leave of the court of first instance, granted—

(a) on the motion of the prosecutor, or

(b) on that court's initiative.

(3) Any motion for leave to appeal must be made before the close of the case for the prosecution.

(4) In determining whether to grant leave to appeal the court must consider—

(a) whether there are arguable grounds of appeal, and

(b) what effect the finding has on the strength of the prosecutor's case.

Textual Amendments

F967 Ss. 107A-107F inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 74, 206(1); S.S.I. 2011/178, art. 2, sch.

107C Appeals under section 107A and 107B: general provisions S

(1) In an appeal brought under section 107A or 107B the High Court may review not only the acquittal, direction or finding appealed against but also any direction, finding, decision, determination or ruling in the proceedings at first instance if it has a bearing on the acquittal, direction or finding appealed against.

(2) The test to be applied by the High Court in reviewing the acquittal, direction or finding appealed against is whether it was wrong in law.

Textual Amendments

F967 Ss. 107A-107F inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 74, 206(1); S.S.I. 2011/178, art. 2, sch.

107D Expedited appeals S

(1) Subsection (2) applies where—

(a) the prosecutor intimates intention to appeal under section 107A or leave to appeal is granted by the court under section 107B, and

(b) the court is able to obtain confirmation from the Keeper of the Rolls that it would be practicable for the appeal to be heard and determined during an adjournment of the trial diet.

(2) The court must inform both parties of that fact and, after hearing them, must decide whether or not the appeal is to be heard and determined during such an adjournment.

(3) An appeal brought under section 107A or 107B which is heard and determined during such an adjournment is referred to in this Act as an “expedited appeal”.

(4) If the court decides that the appeal is to be an expedited appeal the court must, pending the outcome of the appeal—

(a) adjourn the trial diet, and

(b) where the appeal is against an acquittal, suspend the effect of the acquittal.

(5) Where the court cannot obtain from the Keeper of the Rolls confirmation of the kind mentioned in subsection (1)(b), the court must inform the parties of that fact.

(6) Where the High Court in an expedited appeal determines that an acquittal of an offence libelled in the indictment was wrong in law it must quash the acquittal and direct that the trial is to proceed in respect of the offence.

Textual Amendments

F967 Ss. 107A-107F inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 74, 206(1); S.S.I. 2011/178, art. 2, sch.

107E Other appeals under section 107A: appeal against acquittal S

(1) This section applies where—

(a) an appeal brought under section 107A is not an expedited appeal,

(b) the appeal is against an acquittal, and

(c) the High Court determines that the acquittal was wrong in law.

(2) The court must quash the acquittal.

(3) If the prosecutor seeks leave to bring a new prosecution charging the accused with the same offence as that libelled in the indictment, or a similar offence arising out of the same facts as the offence libelled in the indictment, the High Court must grant the prosecutor authority to do so in accordance with section 119, unless the court considers that it would be contrary to the interests of justice to do so.

(4) If—

(a) no motion is made under subsection (3), or

(b) the High Court does not grant a motion made under that subsection,

the High Court must in disposing of the appeal acquit the accused of the offence libelled in the indictment.

Textual Amendments

F967 Ss. 107A-107F inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 74, 206(1); S.S.I. 2011/178, art. 2, sch.

107F Other appeals under section 107A or 107B: appeal against directions etc. S

(1) This section applies where—

(a) an appeal brought under section 107A or 107B is not an expedited appeal, and

(b) the appeal is not against an acquittal.

(2) The court of first instance must desert the diet pro loco et tempore in relation to any offence to which the appeal relates.

(3) The trial is to proceed only if another offence of which the accused has not been acquitted and to which the appeal does not relate is libelled in the indictment.

(4) However, if the prosecutor moves for the diet to be deserted pro loco et tempore in relation to such other offence, the court must grant the motion.

(5) If the prosecutor seeks leave to bring a new prosecution charging the accused with the same offence as that libelled in the indictment, or a similar offence arising out of the same facts as the offence libelled in the indictment, the High Court must grant the prosecutor authority to do so in accordance with section 119, unless the court considers that it would be contrary to the interests of justice to do so.]

Textual Amendments

F967 Ss. 107A-107F inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 74, 206(1); S.S.I. 2011/178, art. 2, sch.

[F968 108 Lord Advocate’s right of appeal against disposal. S

(1) Where a person has been convicted on indictment, the Lord Advocate may, in accordance with subsection (2) below, appeal against any of the following disposals, namely—

(a) a sentence passed on conviction;

(b) a decision under section 209(1)(b) of this Act not to make a supervised release order;

(c) a decision under section 234A(2) of this Act not to make a non-harassment order;

[F969 (ca) a decision under section 92 of the Proceeds of Crime Act 2002 not to make a confiscation order;.]

[F970 (cb) a decision under section 22A of the Serious Crime Act 2007 not to make a serious crime prevention order;]

[F971 (cb) a decision under section 36(2) of the Regulatory Reform (Scotland) Act 2014 not to make a publicity order;

(cc) a decision under section 41(2) of that Act not to make a remediation order;]

[F972 (cd) a decision under section 97B(2) of the Proceeds of Crime Act 2002 to make or not to make a compliance order;]

[F973 (ce) a decision under section 30(2) of the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 not to make a remedial order,

(cf) a decision under section 30(2) of that Act not to make a publicity order,]

F974 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F975 (dd) a drug treatment and testing order;]

F974 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) a decision to remit to the Principal Reporter made under section 49(1)(a) of this Act;

(g) an order deferring sentence;

(h) an admonition; or

(i) an absolute discharge.

(2) An appeal under subsection (1) above may be made—

(a) on a point of law;

(b) where it appears to the Lord Advocate, in relation to an appeal under—

(i) paragraph (a), (h) or (i) of that subsection, that the disposal was unduly lenient;

(ii) paragraph (b) [F976 , (c) [F977 , (ca), (cb) [F978 , (cc) [F979 , (cd), (ce) or (cf)]]]] of that subsection, that the decision not to make the order in question was inappropriate;

(iii) paragraph [F980 (cd) or] [F981 (dd)] of that subsection, that the making of the order concerned was unduly lenient or was on unduly lenient terms;

(iv) under paragraph (f) of that subsection, that the decision to remit was inappropriate;

(v) under paragraph (g) of that subsection, that the deferment of sentence was inappropriate or was on unduly lenient conditions.

[F982 (2A) In deciding whether to appeal under subsection (1) in any case, the Lord Advocate must have regard to any sentencing guidelines which are applicable in relation to the case.]

[F983 (3) For the purposes of subsection (2)(b)(i) above in its application to a confiscation order by virtue of section 92(11) of the Proceeds of Crime Act 2002, the reference to the disposal being unduly lenient is a reference to the amount required to be paid by the order being unduly low.]]

Textual Amendments

F968 S. 108 substituted (1.8.1997) by 1997 c. 48, s. 21(1); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F969 S. 108(1)(ca) inserted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 115(2), 458; S.S.I. 2003/210, art. 2 (subject to arts. 3-7)

F970 S. 108(1)(cb) inserted (1.3.2016) by Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 14; S.I. 2016/148, reg. 3(g)

F971 S. 108(1)(cb)(cc) inserted (30.6.2014) by Regulatory Reform (Scotland) Act 2014 (asp 3), ss. 44(2)(a), 61(2); S.S.I. 2014/160, art. 2(1)(2), sch.

F972 S. 108(1)(cd) inserted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 17(2)(a), 88(2)(a); S.S.I. 2016/11, reg. 2(b)

F973 S. 108(1)(ce)(cf) inserted (1.10.2017) by Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 (asp 14), ss. 31(2)(a), 36(2); S.S.I. 2017/294, reg. 2, sch.

F974 S. 108(1)(d)(e) repealed (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 8(a); S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F975 S. 108(1)(dd) inserted (30.9.1998) by 1998 c. 37, s. 94(2), Sch. 6 Pt. II para. 6(2); S.I. 1998/2327, art. 2(1)(s)

F976 Words in s. 108(2)(b)(ii) substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 115(3), 458; S.S.I. 2003/210, art. 2 (subject to arts. 3-7)

F977 Words in s. 108(2)(b)(ii) substituted (30.6.2014) by Regulatory Reform (Scotland) Act 2014 (asp 3), ss. 44(2)(b), 61(2); S.S.I. 2014/160, art. 2(1)(2), sch.

F978 Words in s. 108(2)(b)(ii) substituted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 17(2)(b)(i), 88(2)(a); S.S.I. 2016/11, reg. 2(b)

F979 Words in s. 108(2)(b)(ii) substituted (1.10.2017) by Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 (asp 14), ss. 31(2)(b), 36(2); S.S.I. 2017/294, reg. 2, sch.

F980 Words in s. 108(2)(b)(iii) inserted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 17(2)(b)(ii), 88(2)(a); S.S.I. 2016/11, reg. 2(b)

F981 Words in s. 108(2)(b)(iii) substituted (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 8(b); S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F982 S. 108(2A) inserted (19.10.2015) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 6(7), 206(1); S.S.I. 2015/336, art. 2(a)

F983 S. 108(3) inserted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 115(4), 458; S.S.I. 2003/210, art. 2 (subject to arts. 3-7)

[F984 108A Lord Advocate’s appeal against decision not to impose automatic sentence in certain cases. S

Where the court has exercised the power conferred by section or [F985 or 205B(3)] of this Act, the Lord Advocate may appeal against that decision.]

Textual Amendments

F984 S. 108A inserted (20.10.1997 for specified purposes and otherwise prosp.) by 1997 c. 48 , s. 18(2) ; S.I. 1997/2323 , art. 3 , Sch. 1

F985 Words in s. 108A substituted (30.9.1998) by 1998 c. 37 , s. 119 , Sch. 8 para. 120 ; S.I. 1998/2327 , art. 2(1)(y)(2)(kk)

109 Intimation of intention to appeal. S

(1) Subject to section 111(2) of this Act and to [F986 section 99 of the Proceeds of Crime Act 2002 (postponement)] , where a person desires to appeal under section 106(1)(a) or (f) of this Act, he shall within two weeks of the final determination of the proceedings, lodge with the Clerk of Justiciary written intimation of intention to appeal which shall identify the proceedings and be in as nearly as may be the form prescribed by Act of Adjournal.

[F987 (1A) Where a person desires to appeal under section 106(1)(a) of this Act by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16), subsection (1) applies with the following modifications—

(a) for the words “two weeks of the final determination of the proceedings” substitute “ two weeks of the date on which the person is acquitted of an offence mentioned in section 11(2) of the Double Jeopardy (Scotland) Act 2011 (asp 16) ”; and

(b) the reference to identifying the proceedings is to be construed as a reference to identifying—

(i) the proceedings which resulted in the conviction desired to be appealed; and

(ii) the proceedings which resulted in the person's acquittal as mentioned in section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16).

(1B) Subsections (5) to (9) of section 106 of this Act do not apply where the modifications specified in subsection (1A) apply.]

(2) A copy of intimation given under subsection (1) above shall be sent to the Crown Agent.

(3) On intimation under subsection (1) above being lodged by a person in custody, the Clerk of Justiciary shall give notice of the intimation to the Secretary of State.

(4) Subject to subsection (5) below, for the purposes of subsection (1) above and section 106(5) to (7) of this Act, proceedings shall be deemed finally determined on the day on which sentence is passed in open court.

(5) Where in relation to an appeal under section 106(1)(a) of this Act sentence is deferred under section 202 of this Act, the proceedings shall be deemed finally determined on the day on which sentence is first so deferred in open court.

(6) Without prejudice to section 10 of the said Act of 1995, the reference in subsection (4) above to “the day on which sentence is passed in open court” shall, in relation to any case in which, under subsection (1) of that section, a decision has been postponed for a period, be construed as a reference to the day on which that decision is made, whether or not a confiscation order is then made or any other sentence is then passed.

Textual Amendments

F986 Words in s. 109(1) substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29) , ss. 456 , 458 , Sch. 11 para. 29(2) ; S.S.I. 2003/210 , art. 2 , Sch. (subject to arts. 3-7 )

F987 S. 109(1A)(1B) inserted (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), s. 17(3), sch. para. 9; S.S.I. 2011/365, art. 3

Modifications etc. (not altering text)

C89 S. 109(1) restricted (1.4.1996) by 1995 c. 43 , ss. 10(4) , 50(2)

C90 S. 109(1) modified (24.3.2003) by Proceeds of Crime Act 2002 (c. 29) , ss. 100(6) , 458 ; S.S.I. 2003/210 , art. 2 (subject to arts. 3-7 )

110 Note of appeal. S

(1) Subject to section 111(2) of this Act—

(a) within [F988 eight] weeks of lodging intimation of intention to appeal or, in the case of an appeal under section 106(1)(b) to (e) of this Act F989 . . . , within two weeks of the [F990 appropriate date (being, as the case may be, the date on which sentence was passed, the order disposing of the case was made, sentence was deferred F991 ... or the previous conviction was quashed as mentioned in section 106A(1)(c) or (2)(c) of this Act)] in open court, the convicted person may lodge a written note of appeal with the Clerk of Justiciary who shall send a copy to the judge who presided at the trial and to the Crown Agent; or, as the case may be,

(b) within four weeks of the passing of the sentence in open court, the Lord Advocate may lodge such a note with the Clerk of Justiciary, who shall send a copy to the said judge and to the convicted person or that person’s solicitor.

[F992 (c) where the prosecutor intimates intention to appeal under section 107A(1), within 7 days after the acquittal or direction appealed against, the prosecutor may, except in the case of an expedited appeal, lodge such a note with the Clerk of Justiciary, who must send a copy to the judge and to the accused or to the accused's solicitor,

(d) within 7 days after leave to appeal under section 107B(1) is granted, the prosecutor may, except in the case of an expedited appeal, lodge such a note with the Clerk of Justiciary, who must send a copy to the judge and to the accused or to the accused's solicitor,

(e) in the case of an expedited appeal, as soon as practicable after the decision as to hearing and determining the case is made under section 107D(2), the prosecutor may—

(i) lodge such a note with the Clerk of Justiciary, and

(ii) provide a copy to the judge and to the accused or to the accused's solicitor.]

(2) The period of [F993 eight] weeks mentioned in paragraph (a) of subsection (1) above may be extended, before it expires, by the Clerk of Justiciary.

(3) A note of appeal shall—

(a) identify the proceedings;

(b) contain a full statement of all the grounds of appeal; and

(c) be in as nearly as may be the form prescribed by Act of Adjournal.

[F994 (3A) In respect of a written note of appeal relating to an appeal by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16)—

(a) subsection (1) applies as if the reference to the judge who presided at the trial were a reference to—

(i) the judge who presided at the trial resulting in the conviction to which the written note of appeal relates; and

(ii) the judge who presided at the trial for an offence mentioned in section 11(2) of that Act resulting in the convicted person's acquittal; and

(b) subsection (3)(a) applies as if the reference to the proceedings were a reference to—

(i) the proceedings which resulted in the conviction to which the written note of appeal relates; and

(ii) the proceedings which resulted in the convicted person's acquittal.]

(4) Except by leave of the High Court on cause shown, it shall not be competent for an appellant to found any aspect of his appeal on a ground not contained in the note of appeal.

(5) Subsection (4) above shall not apply as respects any ground of appeal specified as an arguable ground of appeal by virtue of subsection (7) of section 107 of this Act.

(6) On a note of appeal under section 106(1)(b) to (e) of this Act being lodged by an appellant in custody the Clerk of Justiciary shall give notice of that fact to the Secretary of State.

Textual Amendments

F988 Word in s. 110(1)(a) substituted (26.8.2002) by Act of Adjournal (Criminal Appeals) 2002 (S.S.I. 2002/387) , para. 2

F989 Words in s. 110(1)(a) repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 80 , 84 , Sch. para. 16(2)(a) ; S.S.I. 2007/479 , art. 3(1) , Sch. (as amended by S.S.I. 2007/527 )

F990 Words in s. 110(1) substituted (20.10.1997) by 1997 c. 48 , s. 19(2) ; S.I. 1997/2323 , art. 3 , Sch. 1

F991 Words in s. 110(1)(a) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14) , s. 101(2) , sch. 4 para. 15 (with ss. 90 , 99 ); S.S.I. 2011/157 , art. 2(a) (with art. 5(1) )

F992 S. 110(1)(c)-(e) added (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 76(1), 206(1); S.S.I. 2011/178, art. 2, sch.

F993 Word in s. 110(2) substituted (26.8.2002) by Act of Adjournal (Criminal Appeals) 2002 (S.S.I. 2002/387) , para. 2

F994 S. 110(3A) inserted (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), s. 17(3), sch. para. 10; S.S.I. 2011/365, art. 3

Modifications etc. (not altering text)

C91 S. 110(2)-(4)(6) applied (27.10.2003) by S.I. 1996/513 , rule 19B .1(2) (as inserted by Act of Adjournal (Criminal Procedure Rules Amendment No. 2) (Miscellaneous) 2003 (S.S.I. 2003/468) , rule 2(10) )

111 Provisions supplementary to sections 109 and 110. S

(1) Where the last day of any period mentioned in sections 109(1) and 110(1) of this Act falls on a day on which the office of the Clerk of Justiciary is closed, such period shall extend to and include the next day on which such office is open.

(2) Any period mentioned in section 109(1) or 110(1)(a) of this Act may be extended at any time by the High Court in respect of any convicted person; and an application for such extension may be made under this subsection and shall be in as nearly as may be the form prescribed by Act of Adjournal.

[F995 (2ZA) Where an application under subsection (2) is received after the period to which it relates has expired, the High Court may extend the period only if it is satisfied that doing so is justified by exceptional circumstances.

(2ZB) In considering whether there are exceptional circumstances for the purpose of subsection (2ZA), the High Court must have regard to—

(a) the length of time that has elapsed between the expiry of the period and the making of the application,

(b) the reasons stated in accordance with subsection (2A)(a)(i),

(c) the proposed grounds of appeal.]

[F996 (2A) An application under subsection (2) F997 ... must—

(a) state—

(i) the reasons why the applicant failed [F998 , or expects to fail,] to comply with the time limit F999 ..., and

(ii) the proposed grounds of appeal, and

(b) be intimated in writing by the applicant to the Crown Agent.

(2B) If the prosecutor so requests within 7 days of receipt of intimation of the application under subsection (2A)(b), the prosecutor must be given an opportunity to make representations before the application is determined.

F1000 (2C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

F1001 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F1002 (4) An application under subsection (2) is to be dealt with by the High Court—

(a) in chambers, and

(b) unless the Court directs otherwise, without the parties being present.

(5) If the High Court extends a period under subsection (2), it must—

(a) give reasons for the decision in writing, and

(b) give the reasons in ordinary language.]

Textual Amendments

F995 S. 111(2ZA)(2ZB) inserted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 90(3), 117(2); S.S.I. 2016/426, art. 2, sch.

F996 S. 111(2A)-(2C) inserted (30.10.2010) by Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (asp 15), ss. 5(2), 9 (with s. 5(4))

F997 Words in s. 111(2A) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 90(4)(a), 117(2); S.S.I. 2016/426, art. 2, sch.

F998 Words in s. 111(2A)(a)(i) inserted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 90(4)(b)(i), 117(2); S.S.I. 2016/426, art. 2, sch.

F999 Words in s. 111(2A)(a)(i) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 90(4)(b)(ii), 117(2); S.S.I. 2016/426, art. 2, sch.

F1000 S. 111(2C) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 90(5), 117(2); S.S.I. 2016/426, art. 2, sch.

F1001 S. 111(3) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 16 (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1002 S. 111(4)(5) inserted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 90(6), 117(2); S.S.I. 2016/426, art. 2, sch.

112 Admission of appellant to bail. S

(1) Subject to [F1003 subsections (2), (2A) and (9)] below, the High Court may, if it thinks fit, on the application of a convicted person, admit him to bail pending the determination of—

(a) his appeal; or

(b) any relevant appeal by the Lord Advocate under section 108 [F1004 or 108A] of this Act.

[F1005 (2) The High Court shall not admit a convicted person to bail under subsection (1) above unless—

(a) the application for bail—

(i) states reasons why it should be granted; and

(ii) where he is the appellant and has not lodged a note of appeal in accordance with section 110(1)(a) of this Act, sets out the proposed grounds of appeal; F1006 . . .

(b) F1007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2A) Where—

(a) the convicted person is the appellant and has not lodged a note of appeal in accordance with section 110(1)(a) of this Act; or

(b) the Lord Advocate is the appellant,

the High Court shall not admit the convicted person to bail under subsection (1) above unless it considers there to be exceptional circumstances justifying admitting him to bail.]

(3) A person who is admitted to bail under subsection (1) above shall, unless the High Court otherwise directs, appear personally in court on the day or days fixed for the hearing of the appeal.

(4) Where an appellant fails to appear personally in court as mentioned in subsection (3) above, the court may—

(a) if he is the appellant—

(i) decline to consider the appeal; and

(ii) dismiss it summarily; or

(b) whether or not he is the appellant—

(i) consider and determine the appeal; or

(ii) without prejudice to section 27 of this Act, make such other order as the court thinks fit.

(5) For the purposes of subsections (1), (3) and (4) above, “appellant” includes not only a person who has lodged a note of appeal but also one who has lodged an intimation of intention to appeal.

[F1008 (6) Subject to [F1009 subsections (7) and (9)] below, the High Court may, if it thinks fit, on the application of a convicted person, admit him to bail pending the determination of any appeal under [F1010 section 288AA of this Act or] paragraph 13(a) of Schedule 6 to the Scotland Act 1998 and the disposal of the proceedings by the High Court thereafter.

(7) The High Court shall not admit a convicted person to bail under subsection (6) above unless

F1011 [( a )] the application for bail states reasons why it should be granted and the High Court considers there to be exceptional circumstances justifying admitting the convicted person to bail[F1012 and

(b) where the appeal relates to conviction on indictment, the prosecutor has had an opportunity to be heard on the application.]

(8) A person who is admitted to bail under subsection (6) above shall, unless the High Court otherwise directs, appear personally in the High Court at any subsequent hearing in the High Court in relation to the proceedings; and if he fails to do so the court may, without prejudice to section 27 of this Act, make such order as it thinks fit.]

[F1013 (9) An application for the purposes of subsection (1) or (6) above by a person convicted on indictment shall be—

(a) intimated by him immediately and in writing to the Crown Agent; and

(b) heard not less than seven days after the date of that intimation.]

Textual Amendments

F1003 Words in s. 112(1) substituted (27.6.2003) by virtue of Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 66(5)(a) , 89 ; S.S.I. 2003/288 , art. 2

F1004 Words in s. 112(1) inserted (20.10.1997) by 1997 c. 48 , s. 18(3) ; S.I. 1997/2323 , art. 3 , Sch. 1

F1005 S. 112(2)(2A) substituted (27.6.2003) for s. 112(2) by Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 66(5)(b) , 89 ; S.S.I. 2003/288 , art. 2

F1006 S. 112(2)(b) and preceding word repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 80 , 84 , Sch. para. 16(3) ; S.S.I. 2007/479 , art. 3(1) , Sch. (as amended by S.S. I. 2007/527 )

F1007 S. 112(2)(b) and preceding word repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 80 , 84 , Sch. para. 16(3) ; S.S.I. 2007/479 , art. 3(1) , Sch. (as amended by S.S. I. 2007/527 )

F1008 S. 112(6)-(8) inserted (6.5.1999) by S.I. 1999/1042 , arts. 1(2)(a) , 3 , Sch. 1 Pt. I para. 13(2)

F1009 Words in s. 112(6) substituted (27.6.2003) by virtue of Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 66(5)(c) , 89 ; S.S.I. 2003/288 , art. 2

F1010 Words in s. 112(6) inserted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 36(10), 44(5); S.I. 2013/6, art. 2(c)

F1011 Words in s. 112(7) renumbered as s. 112(7)(a) (27.6.2003) by virtue of Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 66(5)(d)(i) , 89 ; S.S.I. 2003/288 , art. 2

F1012 S. 112(7)(b) and word inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 66(5)(d)(ii) , 89 ; S.S.I. 2003/288 , art. 2

F1013 S. 112(9) added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 66(5)(e) , 89 ; S.S.I. 2003/288 , art. 2

113 Judge’s report. S

(1) [F1014 Subject to subsections (1A) to (1D),] As soon as is reasonably practicable after receiving the copy note of appeal sent to him under [F1015 any of paragraphs (a) to (d) of] section 110(1) of this Act, the judge who presided at the trial shall furnish the Clerk of Justiciary with a written report giving the judge’s opinion on the case generally and on the grounds contained in the note of appeal.

[F1016 (1A) Subsections (1B) to (1D) apply where the copy note of appeal mentioned in subsection (1) relates to an appeal by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16).

(1B) The reference in subsection (1) to the judge who presided at the trial is to be construed as a reference to—

(a) the judge who presided at the trial for an offence mentioned in section 11(2) of that Act resulting in the appellant's acquittal; and

(b) where subsection (1C) applies, the judge who presided at the trial resulting in the conviction to which the copy note of appeal relates.

(1C) This subsection applies—

(a) where, in connection with the appeal, the High Court calls for the report to be furnished by the judge mentioned in subsection (1B)(b); and

(b) it is reasonably practicable for the judge to furnish the report.

(1D) For the purposes of subsections (1) to (1C), it is irrelevant whether or not the judge mentioned in subsection (1B)(b) had previously furnished a report under subsection (1).]

(2) The Clerk of Justiciary shall send a copy of the judge’s report—

(a) to the convicted person or his solicitor;

(b) to the Crown Agent; and

(c) in a case referred under [F1017 Part XA of this Act, to the Commission].

(3) Where the judge’s report is not furnished as mentioned in [F1018 subsections (1) to (1D)] above, the High Court may call for the report to be furnished within such period as it may specify or, if it thinks fit, hear and determine the appeal without the report.

(4) Subject to subsection (2) above, the report of the judge shall be available only to the High Court, the parties and, on such conditions as may be prescribed by Act of Adjournal, such other persons or classes of persons as may be so prescribed.

Textual Amendments

F1014 Words in s. 113(1) inserted (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), s. 17(3), sch. para. 11(a); S.S.I. 2011/365, art. 3

F1015 Words in s. 113(1) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 76(2), 206(1); S.S.I. 2011/178, art. 2, sch.

F1016 S. 113(1A)-(1D) inserted (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), s. 17(3), sch. para. 11(b); S.S.I. 2011/365, art. 3

F1017 Words in s. 113(2)(c) substituted (1.4.1999) by 1997 c. 48 , s. 62(1) , Sch. 1 para. 21(16) ; S.I. 1999/652 , art. 2 , Sch. (subject to savings and transitional provisions in art. 3 )

F1018 Words in s. 113(3) substituted (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), s. 17(3), sch. para. 11(c); S.S.I. 2011/365, art. 3

Modifications etc. (not altering text)

C92 S. 113(2)-(4) applied (26.8.2002) by Act of Adjournal (Criminal Procedure Rules) 1996 (S.I. 1996/513) , rule 15 .15(3) (as inserted (26.8.2002) by Act of Adjournal (Criminal Appeals) 2002 (S.S.I. 2002/387) , para. 3(4) )

[F1019 113A Judge's observations in expedited appeal S

(1) On receiving a note of appeal given under section 110(1)(e), the judge who presided at the trial may give the Clerk of Justiciary any written observations that the judge thinks fit on—

(a) the case generally,

(b) the grounds contained in the note of appeal.

(2) The High Court may hear and determine the appeal without any such written observations.

(3) If written observations are given under subsection (1), the Clerk of Justiciary must give a copy of them to—

(a) the accused or the accused's solicitor, and

(b) the prosecutor.

(4) The written observations of the judge are available only to—

(a) the High Court,

(b) the parties, and

(c) any other person or classes of person prescribed by Act of Adjournal, in accordance with any conditions prescribed by Act of Adjournal.]

Textual Amendments

F1019 S. 113A inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 76(3), 206(1); S.S.I. 2011/178, art. 2, sch.

114 Applications made orally or in writing. S

Subject to any provision of this Part of this Act [F1020 or to rules made under section 305 of this Act] to the contrary, any application to the High Court may be made by the appellant or respondent as the case may be or by counsel on his behalf, orally or in writing.

Textual Amendments

F1020 Words in s. 114 inserted (1.9.2003) by Act of Adjournal (Criminal Appeals) 2003 (S.S.I. 2003/387) , para. 2(2)

115 Presentation of appeal in writing. S

(1) [F1021 Subject to rules made under section 305 of this Act,] if an appellant, F1022 . . . desires to present his case and his argument in writing instead of orally he shall, at least four days before the diet fixed for the hearing of the appeal—

(a) intimate this desire to the Clerk of Justiciary;

(b) lodge with the Clerk of Justiciary three copies of his case and argument; and

(c) send a copy of the intimation, case and argument to the Crown Agent.

(2) Any case or argument presented as mentioned in subsection (1) above shall be considered by the High Court.

(3) Unless the High Court otherwise directs, the respondent shall not make a written reply to a case and argument presented as mentioned in subsection (1) above, but shall reply orally at the diet fixed for the hearing of the appeal.

(4) Unless the High Court otherwise allows, an appellant who has presented his case and argument in writing shall not be entitled to submit in addition an oral argument to the court in support of the appeal.

Textual Amendments

F1021 Words in s. 115(1) inserted (1.9.2003) by Act of Adjournal (Criminal Appeals) 2003 (S.S.I. 2003/387) , para. 2(3)(a)

F1022 Words in s. 115(1) omitted (1.9.2003) by virtue of Act of Adjournal (Criminal Appeals) 2003 (S.S.I. 2003/387) , para. 2(3)(b)

116 Abandonment of appeal. S

(1) An appellant may abandon his appeal by lodging with the Clerk of Justiciary a notice of abandonment in as nearly as may be the form prescribed by Act of Adjournal; and on such notice being lodged the appeal shall be deemed to have been dismissed by the court.

[F1023 (2) A person who has appealed against both conviction and sentence (or, as the case may be, against both conviction and a decision mentioned in section 106(1)(bb) or both conviction and disposal and order) may abandon the appeal in so far as it is against conviction and may proceed with it against sentence (or, as the case may be, decision, disposal or order) alone.]

Textual Amendments

F1023 S. 116(2) substituted (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14) , s. 101(2) , sch. 4 para. 17 (with ss. 90 , 99 ); S.S.I. 2011/157 , art. 2(a) (with art. 5(1) )

117 Presence of appellant or applicant at hearing. S

(1) Where an appellant or applicant is in custody the Clerk of Justiciary shall notify—

(a) the appellant or applicant;

(b) the Governor of the prison in which the appellant or applicant then is; and

(c) the Secretary of State,

of the probable day on which the appeal or application will be heard.

(2) The Secretary of State shall take steps to transfer the appellant or applicant to a prison convenient for his appearance before the High Court at such reasonable time before the hearing as shall enable him to consult his legal adviser, if any.

(3) A convicted appellant, notwithstanding that he is in custody, shall be entitled to be present if he desires it, at the hearing of his appeal.

(4) When an appellant or applicant is to be present at any diet—

(a) before the High Court or any judge of that court; or

(b) for the taking of additional evidence before a person appointed for that purpose under section 104(1)(b) of this Act, or

(c) for an examination or investigation by a special commissioner in terms of section 104(1)(d) of this Act,

the Clerk of Justiciary shall give timeous notice to the Secretary of State, in the form prescribed by Act of Adjournal or as nearly as may be in such form.

(5) A notice under subsection (4) above shall be sufficient warrant to the Secretary of State for transmitting the appellant or applicant in custody from prison to the place where the diet mentioned in that subsection or any subsequent diet is to be held and for reconveying him to prison at the conclusion of such diet.

F1024 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) Where the Lord Advocate is the appellant, subsections (1) to [F1025 (5)] above shall apply in respect of the convicted person, if in custody, as they apply to an appellant or applicant in custody.

(8) The Secretary of State shall, on notice under subsection (4) above from the Clerk of Justiciary, ensure that sufficient male and female prison officers attend each sitting of the court, having regard to the list of appeals for the sitting.

(9) When the High Court fixes the date for the hearing of an appeal, or of an application under section 111(2) of this Act, the Clerk of Justiciary shall give notice to the Crown Agent and to the solicitor of the convicted person, or to the convicted person himself if he has no known solicitor.

Textual Amendments

F1024 S. 117(6) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 110(2)(a)(i), 117(2); S.S.I. 2016/426, art. 2, sch.

F1025 Word in s. 117(7) substituted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 110(2)(a)(ii), 117(2); S.S.I. 2016/426, art. 2, sch.

118 Disposal of appeals. S

(1) The High Court may, subject to subsection (4) below, dispose of an appeal against conviction by—

(a) affirming the verdict of the trial court;

(b) setting aside the verdict of the trial court and either quashing the conviction or, subject to subsection (2) below, substituting therefor an amended verdict of guilty; or

(c) setting aside the verdict of the trial court and quashing the conviction and granting authority to bring a new prosecution in accordance with section 119 of this Act.

[F1026 (1A) Where an appeal against conviction is by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16), paragraph (c) of subsection (1) does not apply.]

(2) An amended verdict of guilty substituted under subsection (1) above must be one which could have been returned on the indictment before the trial court.

(3) In setting aside, under subsection (1) above, a verdict the High Court may quash any sentence imposed on the appellant (or, as the case may be, any disposal or order made) as respects the indictment, and—

(a) in a case where it substitutes an amended verdict of guilty, whether or not the sentence (or disposal or order) related to the verdict set aside; or

(b) in any other case, where the sentence (or disposal or order) did not so relate,

may pass another (but not more severe) sentence or make another (but not more severe) disposal or order in substitution for the sentence, disposal or order so quashed.

(4) The High Court may, subject to subsection (5) below, dispose of an appeal against sentence by—

(a) affirming such sentence; or

(b) if the Court thinks that, having regard to all the circumstances, including any F1027 . . . evidence such as is mentioned in section 106(3) of this Act, a different sentence should have been passed, quashing the sentence and passing another sentence whether more or less severe in substitution therefor,

and, in this subsection, “appeal against sentence” shall, without prejudice to the generality of the expression, be construed as including an appeal under [F1028 section [F1029 106(1)(ba), (bb), (c), (d), (da), (e) or (f)]], and any appeal under section 108, of this Act; and other references to sentence shall be construed accordingly.

F1030 (4AA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F1031 (4A) On an appeal under section 108A of this Act, the High Court may dispose of the appeal—

(a) by affirming the decision and any sentence or order passed;

(b) where it is of the opinion mentioned in section 205A(3) or, as the case may be, 205B(3) of this Act but it considers that a different sentence or order should have been passed, by affirming the decision but quashing any sentence or order passed and passing another sentence or order whether more or less severe in substitution therefor; or

(c) in any other case, by setting aside the decision appealed against and any sentence or order passed by the trial court and where the decision appealed against was taken under—

(i) subsection (3) of section 205A of this Act, by passing the sentence mentioned in subsection (2) of that section;

(ii) subsection (3) of section 205B of this Act, by passing a sentence of imprisonment of at least the length mentioned in subsection (2) of that section; or

F1032 (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(5) In relation to any appeal under section 106(1) of this Act, the High Court shall, where it appears to it that the appellant committed the act charged against him but that he was [F1033 not, because of section 51A of this Act, criminally responsible for it], dispose of the appeal by—

(a) setting aside the verdict of the trial court and substituting therefor a verdict of acquittal [F1034 by reason of the special defence set out in section 51A of this Act]; and

(b) quashing any sentence imposed on the appellant (or disposal or order made) as respects the indictment and—

(i) making, in respect of the appellant, any order mentioned in section 57(2)(a) to (d) of this Act; or

(ii) making no order.

(6) Subsections [F1035 (3) to (6)] of section 57 of this Act shall apply to an order made under subsection (5)(b)(i) above as they apply to an order made under subsection (2) of that section.

(7) In disposing of an appeal under section 106(1)(b) to (f) or 108 of this Act the High Court may, without prejudice to any other power in that regard, pronounce an opinion on

F1036 [(a)] the sentence or other disposal or order which is appropriate in any similar case [F1037 ; F1038 ...,

F1039 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(8) No conviction, sentence, judgment, order of court or other proceeding whatsoever in or for the purposes of solemn proceedings under this Act—

(a) shall be quashed for want of form; or

(b) where the accused had legal assistance in his defence, shall be suspended or set aside in respect of any objections to—

(i) the relevancy of the indictment, or the want of specification therein; or

(ii) the competency or admission or rejection of evidence at the trial in the inferior court,

unless such objections were timeously stated.

[F1040 (9) The High Court may give its reasons for the disposal of any appeal in writing without giving those reasons orally.]

Textual Amendments

F1026 S. 118(1A) inserted (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), s. 17(3), sch. para. 12; S.S.I. 2011/365, art. 3

F1027 S. 118(4)(b) repealed (1.8.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(17)(a); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F1028 Words in s. 118(4) substituted (20.10.1997) by 1997 c. 48, s. 18(5)(a); S.I. 1997/2323, art. 3, Sch. 1

F1029 Words in s. 118(4) substituted (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 18(a) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1030 S. 118(4AA) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 18(b) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1031 S. 118(4A) inserted (20.10.1997 for specified purposes and otherwise prosp.) by 1997 c. 48, s. 18(5)(b); S.I. 1997/2323, art. 3, Sch. 1

F1032 S. 118(4A)(c)(iii) repealed (30.9.1998) by 1998 c. 37, ss. 119, 120(2), Sch. 8 para. 121, Sch. 10; S.I. 1998/2327, art. 2(1)(y)(2)(kk)(3)(w)

F1033 Words in s. 118(5) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 51(a); S.S.I. 2012/160, art. 3, sch.

F1034 Words in s. 118(5) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 51(b); S.S.I. 2012/160, art. 3, sch.

F1035 Words in s. 118(6) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(1)-(4), (Sch. 4 para. 8(11)); S.S.I. 2005/161, art. 3

F1036 Words in s. 118(7) becomes s. 118(7)(a) (10.1.2005) by virtue of Protection of Children (Scotland) Act 2003 (asp 5), ss. 16(4)(b), 22(2); S.S.I. 2004/522, art. 2

F1037 S. 118(7)(b) and words inserted (10.1.2005) by Protection of Children (Scotland) Act 2003 (asp 5), ss. 16(4)(c), 22(2); S.S.I. 2004/522, art. 2

F1038 Words in s. 118(7)(a) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 18(c)(i) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1039 S. 118(7)(b) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 18(c)(ii) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1040 S. 118(9) inserted (1.8.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(17)(b); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

119 Provision where High Court authorises new prosecution. S

(1) Subject to subsection (2) below, where authority is granted under section 118(1)(c) [F1041 or 107E(3) or 107F(5)] of this Act, a new prosecution may be brought charging the accused with the same or any similar offence arising out of the same facts; and the proceedings out of which the appeal arose shall not be a bar to such new prosecution.

[F1042 (2) In a new prosecution under this section—

(a) where authority for the prosecution is granted under section 118(1)(c), the accused must not be charged with an offence more serious than that of which the accused was convicted in the earlier proceedings,

(b) where authority for the prosecution is granted under section 107E(3), the accused must not be charged with an offence more serious than that of which the accused was acquitted in the earlier proceedings,

(c) where authority for the prosecution is granted under section 107F(5), the accused must not be charged with an offence more serious than that originally libelled in the indictment in the earlier proceedings.]

[F1043 (2A) In a new prosecution under this section brought by virtue of section 107F(5), the circumstances set out in the indictment are not to be inconsistent with any direction given under section 97B(2)(b) or 97C(2) in the proceedings which gave rise to the appeal in question unless the High Court, in disposing of that appeal, determined that the direction was wrong in law.]

(3) No sentence may be passed on conviction under the new prosecution which could not have been passed on conviction under the earlier proceedings.

(4) A new prosecution may be brought under this section, notwithstanding that any time limit, other than the time limit mentioned in subsection (5) below, for the commencement of such proceedings has elapsed.

(5) Proceedings in a prosecution under this section shall be commenced within two months of the date on which authority to bring the prosecution was granted.

(6) In proceedings in a new prosecution under this section it shall, subject to subsection (7) below, be competent for either party to lead any evidence which it was competent for him to lead in the earlier proceedings.

(7) 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 (6) above which would not have been competent but for that subsection.

(8) For the purposes of subsection (5) above, proceedings shall be deemed to be commenced—

[F1044 (a) in a case where a warrant to apprehend the accused is granted—

(i) on the date on which the warrant is executed; or

(ii) if it is executed without unreasonable delay, on the date on which it is granted;

(b) in any other case, on the date on which the accused is cited.]

(9) Where the two months mentioned in subsection (5) above elapse and no new prosecution has been brought under this section, the order under section 118(1)(c) of this Act setting aside the verdict [F1045 or under section 107E(3) or 107F(5) granting authority to bring a new prosecution] shall have the effect, for all purposes, of an acquittal.

(10) On granting authority under section 118(1)(c) [F1046 or 107E(3) or 107F(5)] 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.

(11) [F1047 Section 65(4)(aa) and (b) and (4A) to (9)] of this Act (prevention of delay in trials) shall apply to an accused person who is detained under subsection (10) above as they apply to an accused person detained by virtue of being committed until liberated in due course of law.

Textual Amendments

F1041 Words in s. 119(1) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 76(4)(a), 206(1); S.S.I. 2011/178, art. 2, sch.

F1042 S. 119(2) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 76(4)(b), 206(1); S.S.I. 2011/178, art. 2, sch.

F1043 S. 119(2A) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 76(4)(c), 206(1); S.S.I. 2011/178, art. 2, sch.

F1044 S. 119(8)(a)(b) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5) , ss. 25 , 27(1) , Sch. para. 32 ; S.S.I. 2004/405 , art. 2 , Sch. 1 (with savings in arts. 3-5 )

F1045 Words in s. 119(9) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 76(4)(d), 206(1); S.S.I. 2011/178, art. 2, sch.

F1046 Words in s. 119(10) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 76(4)(a), 206(1); S.S.I. 2011/178, art. 2, sch.

F1047 Words in s. 119(11) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 80 , 84 , Sch. para. 16(6) (subject to art. 14 ); S.S.I. 2007/479 , art. 3(1) , Sch. (as amended by S.S. I. 2007/527 )

120 Appeals: supplementary provisions. S

(1) Where—

(a) intimation of the diet appointed for the hearing of the appeal has been made to the appellant;

(b) no appearance is made by or on behalf of an appellant at the diet; and

(c) no case or argument in writing has been timeously lodged,

the High Court shall dispose of the appeal as if it had been abandoned.

(2) The power of the High Court to pass any sentence under this Part of this Act may be exercised notwithstanding that the appellant (or, where the Lord Advocate is the appellant, the convicted person) is for any reason not present.

(3) When the High Court has heard and dealt with any application under this Part of this Act, the Clerk of Justiciary shall (unless it appears to him unnecessary so to do) give to the applicant if he is in custody and has not been present at the hearing of such application notice of the decision of the court in relation to the said application.

(4) On the final determination of any appeal under this Part of this Act or of any matter under section 103(5) of this Act, the Clerk of Justiciary shall give notice of such determination—

(a) to the appellant or applicant if he is in custody and has not been present at such final determination;

(b) to the clerk of the court in which the conviction took place; and

(c) to the Secretary of State.

121 Suspension of disqualification, forfeiture, etc. S

(1) Any disqualification, forfeiture or disability which attaches to a person by reason of a conviction shall not attach—

(a) for the period of four weeks from the date of the verdict against him; or

(b) where an intimation of intention to appeal or, in the case of an appeal under section 106(1)(b) to (e) [F1048 , 108 or 108A] of this Act, a note of appeal is lodged, until the appeal, if it is proceeded with, is determined.

(2) The destruction or forfeiture or any order for the destruction or forfeiture of any property, matter or thing which is the subject of or connected with any prosecution following upon a conviction shall be suspended—

(a) for the period of four weeks after the date of the verdict in the trial; or

(b) where an intimation of intention to appeal or, in the case of an appeal under section 106(1)(b) to (e) [F1049 , 108 or 108A] of this Act, a note of appeal is lodged, until the appeal, if it is proceeded with, is determined.

(3) This section does not apply in the case of any disqualification, destruction or forfeiture or order for destruction or forfeiture under or by virtue of any enactment which makes express provision for the suspension of the disqualification, destruction or forfeiture or order for destruction or forfeiture pending the determination of an appeal against conviction or sentence.

(4) Where, upon conviction, a fine has been imposed on a person or a compensation order has been made against him under section 249 of this Act, then, for a period of four weeks from the date of the verdict against such person or, in the event of an intimation of intention to appeal (or in the case of an appeal under section 106(1)(b) to (e) [F1050 , 108 or 108A] of this Act a note of appeal) being lodged under this Part of this Act, until such appeal, if it is proceeded with, is determined—

(a) the fine or compensation order shall not be enforced against that person and he shall not be liable to make any payment in respect of the fine or compensation order; and

(b) any money paid by that person under the compensation order shall not be paid by the clerk of court to the person entitled to it under subsection (9) of the said section 249.

[F1051 (5) In this section–

(a) “appeal” includes an appeal under [F1052 section 288AA of this Act or] paragraph 13(a) of Schedule 6 to the Scotland Act 1998; and

(b) in relation to such an appeal, references to an appeal being determined are to be read as references to the disposal of the proceedings by the High Court following determination of the appeal.]

Textual Amendments

F1048 Words in s. 121(1)(b) substituted (20.10.1997) by 1997 c. 48 , s. 18(6)(a) ; S.I. 1997/2323 , art. 3 , Sch. 1

F1049 Words in s. 121(2)(b) substituted (20.10.1997) by 1997 c. 48 , s. 18(6)(b) ; S.I. 1997/2323 , art. 3 , Sch. 1

F1050 Words in s. 121(4) substituted (20.10.1997) by 1997 c. 48 , s. 18(6)(c) ; S.I. 1997/2323 , art. 3 , Sch. 1

F1051 S. 121(5) inserted (6.5.1999) by S.I. 1999/1042 , arts. 1(2)(a) , 3 , Sch. 1 Pt. I para. 13(3)

F1052 Words in s. 121(5)(a) inserted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 36(10), 44(5); S.I. 2013/6, art. 2(c)

Modifications etc. (not altering text)

C93 S. 121 excluded (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), ss. 11(9), 17(3) (with s. 14); S.S.I. 2011/365, art. 3

[F1053 121A Suspension of certain sentences pending determination of appeal. S

(1) Where an intimation of intention to appeal or, in the case of an appeal under section 106(1)(b) to (e) F1054 [F1055 ... ] , 108 or 108A of this Act, a note of appeal is lodged, the court may on the application of the appellant direct that the whole, or any remaining part, of a relevant sentence shall be suspended until the appeal, if it is proceeded with, is determined.

(2) Where the court has directed the suspension of the whole or any remaining part of a person’s relevant sentence, the person shall, unless the High Court otherwise directs, appear personally in court on the day or days fixed for the hearing of the appeal.

(3) Where a person fails to appear personally in court as mentioned in subsection (2) above, the court may—

(a) if he is the appellant—

(i) decline to consider the appeal; and

(ii) dismiss it summarily; or

(b) whether or not he is the appellant—

(i) consider and determine the appeal; or

(ii) make such other order as the court thinks fit.

(4) In this section “ relevant sentence ” means any one or more of the following—

[F1056 (aa) a community payback order;]

(d) a restriction of liberty order.]

[F1057 (5) Subsections (1), (2) and (4) above apply to an appeal under [F1058 section 288AA of this Act or] paragraph 13(a) of Schedule 6 to the Scotland Act 1998 and, in relation to such an appeal–

(a) references to an appeal being determined are to be read as references to the disposal of the proceedings by the High Court following determination of the appeal; and

(b) the reference in subsection (2) to the hearing of the appeal is to be read as a reference to any subsequent hearing in the High Court in relation to the proceedings.

(6) Where a person fails to appear personally in court as mentioned in subsection (2) as read with subsection (5) above, the court may make such order as it thinks fit.]

Textual Amendments

F1053 S. 121A inserted (1.8.1997 for specified purposes otherwise and 1.7.1998) by 1997 c. 48 , s. 24(1) ; S.I. 1997/1712 , art. 3 , Sch. (subject to arts. 4 , 5 ); S.I. 1997/2323 , art. 5(1)

F1054 Words in s. 121A(1) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 19 (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1055 Words in s. 121A(1) inserted (10.1.2005) by Protection of Children (Scotland) Act 2003 (asp 5) , ss. 16(5) , 22(2) ; S.S.I. 2004/522 , art. 2

F1056 S. 121A(4)(aa) substituted for s. 121A(4)(a)-(c) (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) , ss. 14(2) , 206(1) , Sch. 2 para. 10 ; S.S.I. 2010/413 , art. 2 , Sch. (with art. 3 )

F1057 S. 121A(5)(6) inserted (6.5.1999) by S.I. 1999/1042 , arts. 1(2)(a) , 3 , Sch. 1 Pt. I para. 13(4)

F1058 Words in s. 121A(5) inserted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 36(10), 44(5); S.I. 2013/6, art. 2(c)

122 Fines and caution. S

(1) Where a person has on conviction been sentenced to payment of a fine and in default of payment to imprisonment, the person lawfully authorised to receive the fine shall, on receiving it, retain it until the determination of any appeal in relation to the conviction or sentence.

(2) If a person sentenced to payment of a fine remains in custody in default of payment of the fine he shall be deemed, for the purposes of this Part of this Act, to be a person sentenced to imprisonment.

(3) An appellant who has been sentenced to the payment of a fine, and has paid it in accordance with the sentence, shall, in the event of his appeal being successful, be entitled, subject to any order of the High Court, to the return of the sum paid or any part of it.

(4) A convicted person who has been sentenced to the payment of a fine and has duly paid it shall, if an appeal against sentence by the Lord Advocate [F1059 or any appeal by the Lord Advocate or the Advocate General for Scotland under [F1060 section 288AA of this Act or] paragraph 13(a) of Schedule 6 to the Scotland Act 1998]results in the sentence being quashed and no fine, or a lesser fine than that paid, being imposed, be entitled, subject to any order of the High Court, to the return of the sum paid or as the case may be to the return of the amount by which that sum exceeds the amount of the lesser fine.

[F1061 (5) In subsections (1) and (3) above, “appeal” includes an appeal under [F1062 section 288AA of this Act or] paragraph 13(a) of Schedule 6 to the Scotland Act 1998.]

Textual Amendments

F1059 Words in s. 122(4) inserted (6.5.1999) by S.I. 1999/1042 , arts. 1(2)(a) , 3 , Sch. 1 Pt. I para. 13(5)(a)

F1060 Words in s. 122(4) inserted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 36(10), 44(5); S.I. 2013/6, art. 2(c)

F1061 S. 122(5) inserted (6.5.1999) by S.I. 1999/1042 , arts. 1(2)(a) , 3 , Sch. 1 Pt. I para. 13(5)(b)

F1062 Words in s. 122(5) inserted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 36(10), 44(5); S.I. 2013/6, art. 2(c)

123 Lord Advocate’s reference. S

(1) Where a person tried on indictment is acquitted or convicted of a charge, the Lord Advocate may refer a point of law which has arisen in relation to that charge to the High Court for their opinion; and the Clerk of Justiciary shall send to the person and to any solicitor who acted for the person at the trial, a copy of the reference and intimation of the date fixed by the Court for a hearing.

(2) The person may, not later than seven days before the date so fixed, intimate in writing to the Clerk of Justiciary and to the Lord Advocate either—

(a) that he elects to appear personally at the hearing; or

(b) that he elects to be represented thereat by counsel,

but, except by leave of the Court on cause shown, and without prejudice to his right to attend, he shall not appear or be represented at the hearing other than by and in conformity with an election under this subsection.

(3) Where there is no intimation under subsection (2)(b) above, the High Court shall appoint counsel to act at the hearing as amicus curiae .

(4) The costs of representation elected under subsection (2)(b) above or of an appointment under subsection (3) above shall, after being taxed by the Auditor of the Court of Session, be paid by the Lord Advocate.

(5) The opinion on the point referred under subsection (1) above shall not affect the acquittal or, as the case may be, conviction in the trial.

124 Finality of proceedings and Secretary of State’s reference. S

(1) Nothing in this Part [F1063 or Part XA] of this Act shall affect the prerogative of mercy.

(2) Subject to [F1064 Part XA and [F1065 section 288AA] of this Act] [F1066 and paragraph 13(a) of Schedule 6 to the Scotland Act 1998], every interlocutor and sentence pronounced by the High Court under this Part of this Act shall be final and conclusive and not subject to review by any court whatsoever and [F1067 , except for the purposes of F1068 ... an appeal under [F1069 section 288AA of this Act or] paragraph 13(a) of that Schedule,] it shall be incompetent to stay or suspend any execution or diligence issuing from the High Court under this Part of this Act.

F1070 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1070 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1070 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1063 Words in s. 124(1) inserted (1.4.1999) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(18)(a); S.I. 1999/652, art. 2, Sch. (subject to savings and transitional provisions in art. 3)

F1064 Words in s. 124(2) substituted (1.4.1999) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(18)(b); S.I. 1999/652, art. 2, Sch. (subject to savings and transitional provisions in art. 3)

F1065 Words in s. 124(2) substituted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 94(a), 117(2); S.S.I. 2016/426, art. 2, sch.

F1066 S. 124(2): By S.I. 1999/1042, arts. 1(2)(a), 3, Sch. 1 Pt. I para. 13(6)(a) it is provided (6.5.1999) that after “subsection (3) below” there is inserted “and paragraph 13(a) of Schedule 6 to the Scotland Act 1998”

F1067 Words in s. 124(2) inserted (6.5.1999) by S.I. 1999/1042, arts. 1(2)(a), 3, Sch. 1 Pt. I para. 13(6)(b)

F1068 Words in s. 124(2) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 94(b), 117(2); S.S.I. 2016/426, art. 2, sch.

F1069 Words in s. 124(2) inserted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 36(11)(c), 44(5); S.I. 2013/6, art. 2(c)

F1070 S. 124(3)-(5) repealed (1.4.1999) by 1997 c. 48, s. 62(1)(2), Sch. 1 para. 21(18)(c), Sch. 3; S.I. 1999/652, art. 2, Sch. Table (subject to savings and transitional provisions in art. 3)

125 Reckoning of time spent pending appeal. S

(1) Subject to subsection (2) below, where a convicted person is admitted to bail under section 112 of this Act, the period beginning with the date of his admission to bail and ending on the date of his readmission to prison in consequence of the determination or abandonment of—

(a) his appeal; or, as the case may be,

(b) any relevant appeal by the Lord Advocate under section 108 [F1071 or 108A] of this Act,

shall not be reckoned as part of any term of imprisonment under his sentence.

(2) The time, including any period consequent on the recall of bail, during which an appellant is in custody pending the determination of his appeal or, as the case may be, of any relevant appeal by the Lord Advocate under section 108 [F1072 or 108A] of this Act shall, subject to any direction which the High Court may give to the contrary, be reckoned as part of any term of imprisonment under his sentence.

(3) Subject to any direction which the High Court may give to the contrary, imprisonment of an appellant or, where the appellant is the Lord Advocate, of a convicted person—

(a) who is in custody in consequence of the conviction or sentence appealed against, shall be deemed to run as from the date on which the sentence was passed;

(b) who is in custody other than in consequence of such conviction or sentence, shall be deemed to run or to be resumed as from the date on which his appeal was determined or abandoned;

(c) who is not in custody, shall be deemed to run or to be resumed as from the date on which he is received into prison under the sentence.

(4) In this section references to a prison and imprisonment shall include respectively references to a young offenders institution or place of safety or, as respects a child sentenced to be detained under section 208 of this Act, the place directed by the Secretary of State and to detention in such institution, centre or place of safety, or, as respects such a child, place directed by the Secretary of State and any reference to a sentence shall be construed as a reference to a sentence passed by the court imposing sentence or by the High Court on appeal as the case may require.

Textual Amendments

F1071 Words in s. 125(1)(b) inserted (20.10.1997) by 1997 c. 48 , s. 18(7)(a) ; S.I. 1997/2323 , art. 3 , Sch. 1

F1072 Words in s. 125(2) inserted (20.10.1997) by 1997 c. 48 , s. 18(7)(b) ; S.I. 1997/2323 , art. 3 , Sch. 1

126 Extract convictions. S

No extract conviction shall be issued—

(a) during the period of four weeks after the day on which the conviction took place, except in so far as it is required as a warrant for the detention of the person convicted under any sentence which has been pronounced against him; nor

(b) where an intimation of intention to appeal or, in the case of an appeal under section 106(1)(b) to (e) [F1073 , 108 or 108A]of this Act, a note of appeal is lodged, until the appeal, if it is proceeded with, is determined.

Textual Amendments

F1073 Words in s. 126(b) substituted (20.10.1997) by 1997 c. 48 , s. 18(8) ; S.I. 1997/2323 , art. 3 , Sch. 1

127 Forms in relation to appeals. S

(1) The Clerk of Justiciary shall furnish the necessary forms and instructions in relation to intimations of intention to appeal, notes of appeal or notices of application under this Part of this Act to—

(a) any person who demands them; and

(b) to officers of courts, governors of prisons, and such other officers or persons as he thinks fit.

(2) The governor of a prison shall cause the forms and instructions mentioned in subsection (1) above to be placed at the disposal of prisoners desiring to appeal or to make any application under this Part of this Act.

(3) The governor of a prison shall, if requested to do so by a prisoner, forwarded on the prisoner’s behalf to the Clerk of Justiciary any intimation, note or notice mentioned in subsection (1) above given by the prisoner.

128 Fees and expenses. S

Except as otherwise provided in this Part of this Act, no court fees, or other fees or expenses shall be exigible from or awarded against an appellant or applicant in respect of an appeal or application under this Part of this Act.

129 Non-compliance with certain provisions may be waived. S

(1) Non-compliance with—

(a) the provisions of this Act set out in subsection (3) below; or

(b) any rule of practice for the time being in force under this Part of this Act relating to appeals,

shall not prevent the further prosecution of an appeal if the High Court or a judge thereof considers it just and proper that the non-compliance is waived or, in the manner directed by the High Court or judge, remedied by amendment or otherwise.

(2) Where the High Court or a judge thereof directs that the non-compliance is to be remedied, and the remedy is carried out, the appeal shall proceed.

(3) The provisions of this Act referred to in subsection (1) above are:—

• section 94

• section 103(1), (4), (6) and (7)

• section 104(2) and (3)

• section 105

• section 106(4)

• section 111

• section 114

• section 115

• section 116

• section 117

• section 120(1), (3) and (4)

• section 121

• section 122

• section 126

• section 128.

(4) This section does not apply to any rule of practice relating to appeals under section 60 of this Act.

130 Bill of suspension not competent. S

It shall not be competent to appeal to the High Court by bill of suspension against any conviction, sentence, judgement or order pronounced in any proceedings on indictment in the sheriff court.

[F1074 130A Bill of advocation not competent in respect of certain decisions S

It is not competent to bring under review of the High Court by way of bill of advocation a decision taken at a first diet or a preliminary hearing.]

Textual Amendments

F1074 S. 130A inserted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 92, 117(2); S.S.I. 2016/426, art. 2, sch.

131 Prosecution appeal by bill of advocation. S

(1) Without prejudice to section 74 of this Act, the prosecutor’s right to bring a decision under review of the High Court by way of bill of advocation in accordance with existing law and practice shall extend to the review of a decision of any court of solemn jurisdiction.

(2) Where a decision to which a bill of advocation relates is reversed on the review of the decision the prosecutor may, whether or not there has already been a trial diet at which evidence has been led, proceed against the accused by serving him with an indictment containing, subject to subsection (3) below, the charge or charges which were affected by the decision.

(3) The wording of the charge or charges referred to in subsection (2) above shall be as it was immediately before the decision appealed against.

132 Interpretation of Part VIII. S

In this Part of this Act, unless the context otherwise requires—

• “ appellant ” includes a person who has been convicted and desires to appeal under this Part of the Act;

• “ sentence ” includes any order of the High Court made on conviction with reference to the person convicted or his wife or children, and any recommendation of the High Court as to the making of a deportation order in the case of a person convicted and the power of the High Court to pass a sentence includes a power to make any such order of the court or recommendation, and a recommendation so made by the High Court shall have the same effect for the purposes of Articles 20 and 21 of the Aliens Order 1953 as the certificate and recommendation of the convicting court.

PART IX S Summary Proceedings

General S

133 Application of Part IX of Act. S

(1) This Part of this Act applies to summary proceedings in respect of any offence which might prior to the passing of this Act, or which may under the provisions of this or any Act, whether passed before or after the passing of this Act, be tried summarily.

(2) Without prejudice to subsection (1) above, this Part of this Act also applies to procedure in all courts of summary jurisdiction in so far as they have jurisdiction in respect of—

(a) any offence or the recovery of a penalty under any enactment or rule of law which does not exclude summary procedure as well as, in accordance with section 211(3) and (4) of this Act, to the enforcement of a fine imposed in solemn proceedings; and

(b) any order ad factum praestandum, or other order of court or warrant competent to a court of summary jurisdiction.

(3) Where any statute provides for summary proceedings to be taken under any public general or local enactment, such proceedings shall be taken under this Part of this Act.

(4) Nothing in this Part of this Act shall—

(a) extend to any complaint or other proceeding under or by virtue of any statutory provision for the recovery of any rate, tax, or impost whatsoever; or

(b) affect any right to raise any civil proceedings.

(5) Except where any enactment otherwise expressly provides, all prosecutions under this Part of this Act shall be brought at the instance of the procurator fiscal.

134 Incidental applications. S

(1) This section applies to any application to a court for any warrant or order of court—

(a) as incidental to proceedings by complaint; or

(b) where a court has power to grant any warrant or order of court, although no subsequent proceedings by complaint may follow thereon.

(2) An application to which this section applies may be made by petition at the instance of the prosecutor in the form prescribed by Act of Adjournal.

(3) Where it is necessary for the execution of a warrant or order granted under this section, warrant to break open shut and lockfast places shall be implied.

Modifications etc. (not altering text)

C94 S. 134 applied (20.11.2002) by Copyright, Designs and Patents Act 1988 (c. 48) , ss. 114B(2)(a) , 204B(2)(a) , 297D(2)(a) (as inserted by Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002 (c. 25) , ss. 3 , 4 , 5 ; S.I. 2002/2749 , art. 2 )

S. 134 applied (7.3.2005) by The Electromagnetic Compatibility Regulations 2005 (S.I. 2005/281) , reg. 98(1)

135 Warrants of apprehension and search. S

(1) A warrant of apprehension or search may be in the form prescribed by Act of Adjournal or as nearly as may be in such form, and any warrant of apprehension or search shall, where it is necessary for its execution, imply warrant to officers of law to break open shut and lockfast places.

(2) A warrant of apprehension of an accused in the form mentioned in subsection (1) above shall imply warrant to officers of law to search for and to apprehend the accused, and to bring him before the court issuing the warrant, or before any other court competent to deal with the case, to answer to the charge on which such warrant is granted, and, in the meantime, until he can be so brought, to detain him in a police station, police cell, or other convenient place.

F1075 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1076 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) A warrant of apprehension or other warrant shall not be required for the purpose of bringing before the court an accused who has been apprehended without a written warrant or who attends without apprehension in answer to any charge made against him.

Textual Amendments

F1075 S. 135(3) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 27(d); S.S.I. 2017/345, art. 3, sch. (with arts. 4, 5)

F1076 S. 135(4) repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 17(b); S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

136 Time limit for certain offences. S

(1) Proceedings under this Part of this Act in respect of any offence to which this section applies shall be commenced—

(a) within six months after the contravention occurred;

(b) in the case of a continuous contravention, within six months after the last date of such contravention,

and it shall be competent in a prosecution of a contravention mentioned in paragraph (b) above to include the entire period during which the contravention occurred.

(2) This section applies to any offence triable only summarily and consisting of the contravention of any enactment, unless the enactment fixes a different time limit.

(3) For the purposes of this section proceedings shall be deemed to be commenced on the date on which a warrant to apprehend or to cite the accused is granted, if the warrant is executed without undue delay.

Modifications etc. (not altering text)

C95 S. 136 excluded (1.4.1999) by 1998 c. 39 , s. 33(4) ; S.I. 1998/2574, art. 2(2), Sch. 2

S. 136 excluded (3.6.1999) by S.I. 1999/1516, reg. 9(5)

S. 136 excluded (25.10.1999) by 1973 c. 35, s. 11A(3) (as inserted (25.10.1999) by 1999 c. 26, s. 31, Sch. 7 para. 5); S.I. 1999/2830, art. 2(1), Sch. 1, Pt. I

S. 136 excluded (16.2.2001) by 2000 c. 41, s. 151(3); S.I. 2001/222, art. 2, Sch. 1 Pt. I (subject to transitional provisions in Sch. 1 Pt. II )

S. 136 excluded (16.3.2001 in accordance with art. 1(2)(3) of the amending S.I.) by S.I. 2001/947, art. 16(8)

S. 136 excluded (10.10.2001 in accordance with art. 1(2) of the amending S.I.) by S.I. 2001/3365, art. 10(6)

S. 136 excluded (25.1.2002) by S.I. 2002/111, art. 20(9)

S. 136 excluded (24.10.2002) by S.I. 2002/2628, art. 16(8)

S. 136 excluded (14.6.2003) by S.I. 2003/1519, art. 20(8)

S. 136 excluded (13.2.2004) by S.I. 2004/348, art. 15(8)

S. 136 excluded (11.2.2005) by S.I. 2005/253, art. 9(8)

S. 136 excluded (7.3.2005) by S.I. 2005/281, reg. 93

S. 136 excluded (1.10.2005) by S.I. 2005/1803, reg. 41(2)

S. 136 excluded (20.7.2007) by S.I. 2006/3418, reg. 54 (with savings in regs. 7-14, 63, 64)

C96 S. 136 excluded (26.5.2008) by The Business Protection from Misleading Marketing Regulations 2008 (S.I. 2008/1276), reg. 10(4)(5)

C97 S. 136 excluded (26.5.2008) by The Consumer Protection from Unfair Trading Regulations 2008 (S.I. 2008/1277), reg. 14(4)(5) (with reg. 28(2)(3))

C98 S. 136 restricted (26.11.2008) by Planning Act 2008 (c. 29), ss. 58(6)(7), 236, 241, Sch. 12 para. 9 (with s. 226)

C99 S. 136 excluded (10.4.2009) by The Iran (United Nations Sanctions) Order 2009 (S.I. 2009/886), art. 12(7)

C100 S. 136 excluded (10.7.2009) by The North Korea (United Nations Sanctions) Order 2009 (S.I. 2009/1749), art. 14(7) (as amended by S.I. 2009/3213)

C101 S. 136 excluded (30.4.2012) by The Civil Aviation (Air Travel Organisers' Licensing) Regulations 2012 (S.I. 2012/1017), regs. 1(2), 71(2) (with regs. 73, 74)

C102 S. 136 excluded (8.5.2012) by The Textile Products (Labelling and Fibre Composition) Regulations 2012 (S.I. 2012/1102), regs. 1, 7(4)

C103 S. 136 excluded (18.12.2013) by Scottish Independence Referendum Act 2013 (asp 14), ss. 15(2), 36

C104 S. 136 applied (1.7.2016) by Air Weapons and Licensing (Scotland) Act 2015 (asp 10), ss. 32, 88(2) (with s. 37); S.S.I. 2016/130, art. 2, sch. (with arts. 5, 6)

C105 S. 136 excluded by 2006 c. 36, s. 107(3C)(c) (as inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 13(2), 118(2) (with s. 13(4)))

C106 S. 136 excluded (30.1.2020) by Referendums (Scotland) Act 2020 (asp 2), ss. 17(2), 41

C107 S. 136 excluded (1.11.2023) by Elections Act 2022 (c. 37), ss. 57(4)(10), 67(1); S.I. 2023/1145, reg. 3(f) (with Sch. para. 10)

C108 S. 136(1) modified (21.7.1997) by 1997 c. 22, s. 21(4)(c); S.I. 1997/1672, art. 2

C109 S. 136(1) modified (temp.) (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 50-54, 59(1), sch. para. 21(2) (which affecting provision is continued until 30.11.2025 by S.S.I. 2024/322, regs. 1(2), 2(2))

C110 S. 136(3) applied (1.4.1999) by 1998 c. 39, s. 33(5)(b); S.I. 1998/2574, art. 2(2), Sch. 2

S. 136(3) applied (30.4.1998) by S.I. 1998/955, reg. 8(4)

S. 136(3) applied (1.7.1996) by S.I. 1996/1500, reg. 16(5)

S. 136(3) applied (1.8.1996) by S.I. 1996/2005, reg. 11(4)

S. 136(3) applied (3.12.1996) by S.I. 1996/2999, reg. 11(4)

S. 136(3) applied (2.8.1999) by S.I. 1999/1872, reg. 109(5)

S. 136(3) applied (16.12.1999) by S.I. 1999/3315, reg. 8(5)

S. 136(3) applied (17.12.1999) by S.S.I. 1999/186, reg. 8(6)

S. 136(3) applied (29.1.2001) by S.S.I. 2000/448, reg. 14(4)

S. 136(3) applied (10.10.2001 in accordance with art. 1(2) of the amending S.I.) by S.I. 2001/3365, art. 10(6)

S. 136(3) applied (19.3.2001) by S.S.I. 2001/40, reg. 11(4) (which S.S.I. was revoked 2.7.2001 by S.S.I. 2001/220, art. 13 )

S. 136(3) applied (12.5.2001) by S.S.I. 2001/140, reg. 16(5)

S. 136(3) applied (2.7.2001) by S.S.I. 2001/220, reg. 11(4)

S. 136(3) applied (28.9.2001) by S.S.I. 2001/300, reg. 17(4)

S. 136(3) applied (1.1.2002) by S.S.I. 2001/445, reg. 24(2)

S. 136(3) applied (22.3.2002) by S.S.I. 2002/139, reg. 20(2)

S. 136(3) applied (28.6.2002) by S.S.I. 2002/278, reg.15(4)

S. 136(3) applied (1.4.2002) by 1980 c. 45, s. 72(3C) (as inserted (1.4.2002) by 2002 asp 3, s. 65(3) (with s. 67)); S.S.I. 2002/118, art. 2(3)

S. 136(3) applied (1.10.2004) by 1999 c. 33, s. 92B(7) (as inserted (1.10.2004) by 2004 c. 19, ss. 39(7), 48(1)-(3)); S.I. 2004/2523, art. 2, Sch.)

S. 136(3) applied (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 100(5), 263; S.S.I. 2005/604, art. 2

S. 136(3) applied (18.3.2004) by S.I. 2004/70, reg. 21(2)

S. 136(3) applied (31.12.2005) by S.S.I. 2005/613, art. 45(9)

C111 S. 136(3) extended (1.4.1996) by 1995 c. 39, ss. 4(3), 53(2)

S. 136(3) extended (4.5.1999) by S.I. 1999/1110, reg. 7(6)

S. 136(3) applied (26.3.2006 at 0600 hours) by Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), ss. 5(2), 43 (with s. 10); S.S.I. 2005/492, art. 3(d)

S. 136(3) applied (1.3.2005) by S.I. 2005/218, reg. 12(10)

S. 136(3) applied (18.4.2005) by S.S.I. 2005/143, reg. 25, Sch. 4 para. 9(2)

S. 136(3) applied (12.5.2005) by S.I. 2005/1259, art. 10(3)

S. 136(3) applied (15.5.2005) by S.S.I. 2005/225, reg. 21(4)

S. 136(3) applied (9.6.2005) by S.I. 2005/1517, art. 10(3)

S. 136(3) applied (1.10.2005) by S.I. 2005/1803, reg. 41(3)

S. 136(3) applied (16.12.2005) by S.I. 2005/3432, art. 12(3)(b)

S. 136(3) applied (2.12.2005) by S.S.I. 2005/569, reg. 21(2)

S. 136(3) applied (1.9.2006) by Human Tissue (Scotland) Act 2006 (asp 4), ss. 21(2), 62; S.S.I. 2006/251, art. 3

S. 136(3) applied (1.7.2006) by S.S.I. 2006/319, art. 10(7)

S. 136(3) applied (9.6.2006) by S.I. 2006/1454, art. 13(3)(b)

S. 136(3) applied (9.10.2006) by S.I. 2002/3026, reg. 30(2C) (as inserted by S.I. 2006/2530, reg. 11(2))

S. 136(3) applied (12.10.2006) by S.I. 2006/2657, art. 14(3)(b) (with arts. 18, 19)

S. 136(3) applied (16.11.2006) by S.I. 2006/2952, art. 14(3)(b) (with art. 18)

S. 136(3) applied (16.11.2006) by S.I. 2006/2958, art. 13(3)(b) (with art. 17)

C112 S. 136(3) applied (9.2.2007) by The Iran (Financial Sanctions) Order 2007 (S.I. 2007/281), art. 13(3)(b) (with art. 17)

S. 136(3) applied (3.5.2007) by The Iran (European Community Financial Sanctions) Regulations 2007 (S.I. 2007/1374), reg. 13(3)(b) (with reg. 16)

S. 136(3) applied (28.9.2007) by The Less Favoured Area Support Scheme (Scotland) Regulations 2007 (S.S.I. 2007/439), reg. 21(2)

C113 S. 136(3) applied (20.1.2007, 6.4.2007, 1.10.2007, 6.4.2008, 1.10.2008 for certain purposes and 1.10.2009 otherwise) by Companies Act 2006 (c. 46), ss. 1128(2), 1300 (with savings in s. 1133); S.I. 2006/3428, art. 3(2) (with art. 6); S.I. 2007/1093, art. 2(2)(c) (with arts. 4, 11); S.I. 2007/2194, art. 2(1)(l)(3)(h) (with art. 12); S.I. 2007/3495, arts. 3(3)(g), 5(3)(a) (with arts. 7, 12); S.I. 2008/2860, art. 3(s) (with arts. 5, 7, 8, Sch. 2 (as amended by: S.I. 2009/1802, art. 18; S.I. 2009/1941, art. 13; and S.I. 2009/2476, reg. 2))

C114 S. 136(3) applied (22.3.2008) by The Leader Grants (Scotland) Regulations 2008 (S.S.I. 2008/66), reg. 23(4)

C115 S. 136(3) applied (24.3.2008) by The Agricultural Processing, Marketing and Co-operation Grants (Scotland) Regulations 2008 (S.I. 2008/64), reg. 12(4)

C116 S. 136(3) applied (29.3.2008) by The Rural Development Contracts (Rural Priorities) (Scotland) Regulations 2008 (S.S.I. 2008/100), reg. 22(4)

C117 S. 136(3) applied (15.5.2008) by The Rural Development Contracts (Land Managers Options) (Scotland) Regulations 2008 (S.S.I. 2008/159), regs. 1(1), 21(4)

C118 S. 136(3) applied (18.5.2008) by The Land Managers Skills Development Grants (Scotland) Regulations 2008 (S.S.I. 2008/162), reg. 13(4)

C119 S. 136(3) applied (27.11.2008) Counter-Terrorism Act 2008 (c. 28), ss. 62, 100, Sch. 7 para. 35(2) (with s. 101(2), Sch. 7 para. 43)

C120 S. 136(3) applied (26.1.2009) by The Operation of Air Services in the Community Regulations 2009 (S.I. 2009/41), reg. 30(5)

C121 S. 136(3) applied (10.4.2009) by The Iran (United Nations Sanctions) Order 2009 (S.I. 2009/886), art. 12(7)

C122 S. 136(3) applied (24.4.2009) by The Zimbabwe (Financial Sanctions) Regulations 2009 (S.I. 2009/847), reg. 14(3)(b)

C123 S. 136(3) applied (10.8.2009) by The Terrorism (United Nations Measures) Order 2009 (S.I. 2009/1747), art. 22(3)(b) (with art. 25)

C124 S. 136(3) applied (1.10.2009) by Criminal Justice Act 1993 (c. 36), s. 61A(3) (as inserted by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 2(1), Sch. 1 para. 141 (with art. 10))

C125 S. 136(3) applied (1.1.2010) by The Common Agricultural Policy Single Payment and Support Schemes (Integrated Administration and Control System) Regulations 2009 (S.I. 2009/3263), reg. 10(7)

C126 S. 136(3) applied by Child Support Act 1991 (c. 48), s. 14A(8) (as inserted (14.1.2010) by Welfare Reform Act 2009 (c. 24), ss. 55(3), 61; S.I. 2010/45, art. 2(3))

C127 S. 136(3) applied (8.4.2010) by The Al- Qaida and Taliban (Asset-Freezing) Regulations 2010 (S.I. 2010/1197), regs. 1(1), 11(3)(b) (with reg. 13)

C128 S. 136(3) applied (2.7.2010) by The Less Favoured Area Support Scheme (Scotland) Regulations 2010 (S.S.I. 2010/273), regs. 1(1), 21(2) (with reg. 1(3))

C129 S. 136(3) applied (17.12.2010) by Terrorist Asset- Freezing etc. Act 2010 (c. 38), ss. 36(2)(b), 55 (with s. 44)

C130 S. 136(3) applied (4.1.2011) by The Somalia (Asset-Freezing) Regulations 2010 (S.I. 2010/2956), reg. 16(3)(b) (with reg. 19)

C131 S. 136(3) applied (27.2.2011) by Libya (Financial Sanctions) Order 2011 (S.I. 2011/548), arts. 1(1), 15(3)(b) (with art. 18)

C132 S. 136(3): savings for effects of S.I. 2011/548 art. 15(3)(b) by S.I. 2011/548 art. 19 (as inserted (3.3.2011) by The Libya (Asset-Freezing) Regulations 2011 (S.I. 2011/605), regs. 1(1), 20 (with reg. 18))

C133 S. 136(3) applied (3.3.2011) by The Libya (Asset-Freezing) Regulations 2011 (S.I. 2011/605), regs. 1(1), 15(3)(b) (with reg. 18)

C134 S. 136(3) applied (7.4.2011) by Ivory Coast (Asset-Freezing) Regulations 2011 (S.I. 2011/1086), regs. 1(1), 15(3)(b) (with reg. 18)

C135 S. 136(3) applied (15.4.2011 at 1.00 pm) by Iran (Asset-Freezing) Regulations 2011 (S.I. 2011/1129), regs. 1(1), 15(3)(b) (with reg. 18)

C136 S. 136(3) applied (27.4.2011) by Democratic People's Republic of Korea (Asset-Freezing) Regulations 2011 (S.I. 2011/1094), regs. 1(1), 15(3)(b) (with art. 18)

C137 S. 136(3) applied (10.5.2011 at 6.00 pm) by Syria (Asset-Freezing) Regulations 2011 (S.I. 2011/1244), regs. 1(1), 15(3)(b) (with reg. 18)

C138 S. 136(3) applied (5.8.2011) by The Afghanistan (Asset-Freezing) Regulations 2011 (S.I. 2011/1893), regs. 1(1), 15(3)(b) (with reg. 18)

C139 S. 136(3) applied (16.11.2011) by The Al-Qaida (Asset-Freezing) Regulations 2011 (S.I. 2011/2742), regs. 1(1), 15(3)(b)

C140 S. 136(3) applied (1.1.2012) by The Common Agricultural Policy Single Farm Payment and Support Schemes (Scotland) Regulations 2011 (S.S.I. 2011/416), reg. 1(1), sch. 2 para. 9(2) (with reg. 14(2))

C141 S. 136(3) applied (26.3.2012) by The Iran (European Union Financial Sanctions) Regulations 2012 (S.I. 2012/925), regs. 1(1), 22(3)(b) (with reg. 26(1)(2)(4))

C142 S. 136(3) applied (30.4.2012) by The Civil Aviation (Air Travel Organisers' Licensing) Regulations 2012 (S.I. 2012/1017), regs. 1(2), 71(3) (with regs. 73, 74)

C143 S. 136(3) applied (8.5.2012) by The Textile Products (Labelling and Fibre Composition) Regulations 2012 (S.I. 2012/1102), regs. 1, 7(5)

C144 S. 136(3) applied (6.6.2012) by The Guinea-Bissau (Asset-Freezing) Regulations 2012 (S.I. 2012/1301), regs. 1(1), 14(3)(b)

C145 S. 136(3) applied (2.7.2012) by The Iraq (Asset-Freezing) Regulations 2012 (S.I. 2012/1489), regs. 1(1), 14(3)(b) (with reg. 17)

C146 S. 136(3) applied (4.7.2012) by The Republic of Guinea (Asset-Freezing) Regulations 2012 (S.I. 2012/1508), regs. 1(1), 14(3)(b) (with reg. 17)

C147 S. 136(3) applied (4.7.2012) by The Belarus (Asset-Freezing) Regulations 2012 (S.I. 2012/1509), regs. 1(1), 14(3)(b) (with reg. 17)

C148 S. 136(3) applied (4.7.2012) by The Sudan (Asset-Freezing) Regulations 2012 (S.I. 2012/1507), regs. 1(1), 14(3)(b) (with reg. 17)

C149 S. 136(3) applied (5.7.2012) by The Eritrea (Asset-Freezing) Regulations 2012 (S.I. 2012/1515), regs. 1(1), 14(3)(b) (with reg. 17(1)-(4))

C150 S. 136(3) applied (5.7.2012) by The Democratic Republic of the Congo (Asset-Freezing) Regulations 2012 (S.I. 2012/1511), regs. 1(1), 14(3)(b) (with reg. 17)

C151 S. 136(3) applied (5.7.2012) by The Liberia (Asset-Freezing) Regulations 2012 (S.I. 2012/1516), regs. 1(1), 14(3)(b) (with reg. 17(1)-(4))

C152 S. 136(3) applied (5.7.2012) by The Lebanon and Syria (Asset-Freezing) Regulations 2012 (S.I. 2012/1517), regs. 1(1), 14(3)(b) (with reg. 17(1)-(4))

C153 S. 136(3) applied (14.8.2012) by The Human Medicines Regulations 2012 (S.I. 2012/1916), regs. 1(2), 339(2) (with Sch. 32)

C154 S. 136(3) applied (2.1.2013) by The Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012 (S.I. 2012/3032), regs. 1, 42(2)(b) (with regs. 5, 8)

C155 S. 136(3) applied (21.2.2013) by The Belarus (Asset-Freezing) Regulations 2013 (S.I. 2013/164), regs. 1(1), 14(3)(b) (with reg. 17)

C156 S. 136(3) applied by S.S.I. 2004/520, reg. 19A(5) (as inserted (31.5.2013) by The Environmental Information (Scotland) Amendment Regulations 2013 (S.S.I. 2013/127), regs. 1(1), 2(2))

C157 S. 136(3) applied (11.7.2013) by The Cosmetic Products Enforcement Regulations 2013 (S.I. 2013/1478), regs. 1(2), 22(2)(b) (with reg. 6(5))

C158 S. 136(3) applied (16.8.2013) by The Democratic People's Republic of Korea (European Union Financial Sanctions) Regulations 2013 (S.I. 2013/1877), regs. 1(1), 17(3)(b)

C159 S. 136(3) applied (1.3.2014) by The Olive Oil (Marketing Standards) Regulations 2014 (S.I. 2014/195), regs. 1, 13(4)

C160 S. 136(3) applied (14.3.2014) by The Central African Republic (European Union Financial Sanctions) Regulations 2014 (S.I. 2014/587), regs. 1(1), 13(3)(b) (with reg. 17)

C161 S. 136(3) applied (18.3.2014 at 3.30 p.m.) by The Ukraine (European Union Financial Sanctions) (No.2) Regulations 2014 (S.I. 2014/693), regs. 1(1), 13(3)(b) (with reg. 17)

C162 S. 136(3) applied (1.4.2014) by Energy Act 2013 (c. 32), s. 156(1), Sch. 10 para. 4(3)(c); S.I. 2014/251, art. 4

C163 S. 136(3) applied (6.4.2014 at 3.30 p.m.) by The Ukraine (European Union Financial Sanctions) Regulations 2014 (S.I. 2014/507), regs. 1(1), 13(3)(b) (with reg. 17)

C164 S. 136(3) applied (11.7.2014 at 3.30 p.m.) by The Sudan (European Union Financial Sanctions) Regulations 2014 (S.I. 2014/1826), regs. 1(1), 13(3)(b) (with reg. 17)

C165 S. 136(3) applied (11.7.2014 at 3.30 p.m.) by The South Sudan (European Union Financial Sanctions) Regulations 2014 (S.I. 2014/1827), regs. 1(1), 13(3)(b) (with reg. 17(1)-(4))

C166 S. 136(3) applied (1.8.2014 at 3.00 p.m.) by The Ukraine (European Union Financial Sanctions) (No.3) Regulations 2014 (S.I. 2014/2054), regs. 1(1), 7(3)(b) (with reg. 10)

C167 S. 136(3) applied (19.12.2014 at 2.00 p.m.) by The Yemen (European Union Financial Sanctions) Regulations 2014 (S.I. 2014/3349), regs. 1(1), 13(5)(b) (with reg. 17)

C168 S. 136(3) applied by 2003 c. 21, s. 127(6) (as inserted (13.4.2015) by Criminal Justice and Courts Act 2015 (c. 2), ss. 51(1), 95(1) (with s. 51(2)); S.I. 2015/778, art. 3, Sch. 1 para. 42)

C169 S. 136(3) applied (with effect in accordance with reg. 1 of the amending S.I.) by The South Sudan (European Union Financial Sanctions) (No. 2) Regulations 2015 (S.I. 2015/1361), regs. 1(1), 13(5)(b) (with reg. 17)

C170 S. 136(3) applied (17.8.2015) by The Pyrotechnic Articles (Safety) Regulations 2015 (S.I. 2015/1553), regs. 1, 66(2)(b)

C171 S. 136(3) applied (2.10.2015 at 3.00 p.m.) by The Burundi (European Union Financial Sanctions) Regulations 2015 (S.I. 2015/1740), regs. 1(1), 13(5)(b) (with reg. 17(1)-(4))

C172 S. 136(3) applied (12.10.2015) by The Nagoya Protocol (Compliance) Regulations 2015 (S.I. 2015/821), regs. 1(3), 16(8) (with regs. 1(5), 12)

C173 S. 136(3) applied (16.11.2015) by The Single Common Market Organisation (Emergency Aid for Milk Producers) Regulations 2015 (S.I. 2015/1896), regs. 1(2), 11(7)

C174 S. 136(3) applied (30.11.2015) by The European Maritime and Fisheries Fund (Grants) (Scotland) Regulations 2015 (S.S.I. 2015/359), regs. 1(1), 16(6)

C175 S. 136(3) applied (18.1.2016 at 4.00 p.m.) by The Iran (European Union Financial Sanctions) Regulations 2016 (S.I. 2016/36), regs. 1(1), 14(5)(b) (with regs. 18, 21)

C176 S. 136(3) applied (20.1.2016) by The Libya (European Union Financial Sanctions) Regulations 2016 (S.I. 2016/45), regs. 1(1), 13(5)(b) (with reg. 17)

C177 S. 136(3) applied (30.11.2016) by Bankruptcy (Scotland) Act 2016 (asp 21), ss. 220(3), 237(2) (with ss. 232, 234(3), 235, 236); S.S.I. 2016/294, reg. 2

C178 S. 136(3) applied (8.12.2016) by The Electromagnetic Compatibility Regulations 2016 (S.I. 2016/1091), regs. 1, 70(2)(b) (with regs. 74, 75(5))

C179 S. 136(3) applied (8.12.2016) by The Electrical Equipment (Safety) Regulations 2016 (S.I. 2016/1101), regs. 1, 54(2)(b) (with reg. 3)

C180 S. 136(3) applied (8.12.2016) by The Pressure Equipment (Safety) Regulations 2016 (S.I. 2016/1105), regs. 1, 80(2)(b) (with reg. 88)

C181 S. 136(3) applied (8.12.2016) by The Lifts Regulations 2016 (S.I. 2016/1093), regs. 1, 74(2)(b) (with regs. 3-5)

C182 S. 136(3) applied (8.12.2016) by The Simple Pressure Vessels (Safety) Regulations 2016 (S.I. 2016/1092), regs. 1, 68(2)(b) (with regs. 3, 68(6))

C183 S. 136(3) applied (8.12.2016) by The Equipment and Protective Systems Intended for Use in Potentially Explosive Atmospheres Regulations 2016 (S.I. 2016/1107), regs. 1(1), 65(2)(b)

C184 S. 136(3) applied (1.3.2017) by The Democratic Peoples Republic of Korea (European Union Financial Sanctions) Regulations 2017 (S.I. 2017/218), regs. 1(1), 27(5)(b) (with regs. 31, 33)

C185 S. 136(3) applied (temp.) (6.4.2017) by The Reporting on Payment Practices and Performance Regulations 2017 (S.I. 2017/395), regs. 1(2), 10(3)

C186 S. 136(3) applied by 2006 c. 36, s. 107(3D) (as inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 13(2), 118(2) (with s. 13(4)))

C187 S. 136(3) applied (3.8.2017) by The Recreational Craft Regulations 2017 (S.I. 2017/737), regs. 1, 82(2)(b) (with reg. 89)

C188 S. 136(3) applied (31.10.2017) by The Republic of Mali (European Union Financial Sanctions) Regulations 2017 (S.I. 2017/972), regs. 1(1), 13(5)(b) (with reg. 17)

C189 S. 136(3) applied (6.12.2017) by The Venezuela (European Union Financial Sanctions) Regulations 2017 (S.I. 2017/1094), regs. 1(1), 13(5)(b) (with reg. 17)

C190 S. 136(3) applied (26.12.2017) by The Radio Equipment Regulations 2017 (S.I. 2017/1206), regs. 1, 69(2)(b) (with regs. 3-5, 77)

C191 S. 136(3) applied (21.4.2018) by The Personal Protective Equipment (Enforcement) Regulations 2018 (S.I. 2018/390), regs. 1(1), 11(2)(b) (with reg. 2(1)-(3))

C192 S. 136(3) applied (21.4.2018) by The Gas Appliances (Enforcement) and Miscellaneous Amendments Regulations 2018 (S.I. 2018/389), regs. 1(1), 11(2)(b) (with reg. 2)

C193 S. 136(3) applied (21.5.2018) by The Burma (European Union Financial Sanctions) Regulations 2018 (S.I. 2018/539), regs. 1(1), 13(5)(b) (with reg. 17)

C194 S. 136(3) applied (25.5.2018) by Data Protection Act 2018 (c. 12), ss. 197(7), 212(1) (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)

C195 S. 136(3) applied (8.8.2018) by The Republic of Maldives (Asset-Freezing) Regulations 2018 (S.I. 2018/861), regs. 1(1), 13(5)(b) (with reg. 17)

C196 S. 136(3) applied (7.11.2018) by The Chemical Weapons (Asset-Freezing) and Miscellaneous Amendments Regulations 2018 (S.I. 2018/1090), regs. 1(1), 13(5)(b) (with art. 17)

C197 S. 136(3) applied (1.4.2019) by Forestry and Land Management (Scotland) Act 2018 (asp 8), ss. 67(5), 85(2) (with s. 83); S.S.I. 2019/47, reg. 2 (with regs. 3-22)

C198 S. 136(3) applied (11.6.2019) by The Cyber-Attacks (Asset-Freezing) Regulations 2019 (S.I. 2019/956), regs. 1(1), 13(5)(b) (with reg. 17)

C199 S. 136(3) applied (6.11.2019) by The Nicaragua (Asset-Freezing) Regulations 2019 (S.I. 2019/1353), regs. 1(1), 13(5)(b)

C200 S. 136(3) applied (21.12.2019) by The Turkey (Asset-Freezing) Regulations 2019 (S.I. 2019/1512), regs. 1(1), 13(5)(b) (with reg. 17)

C201 S. 136(3) applied (30.1.2020) by Referendums (Scotland) Act 2020 (asp 2), ss. 17(2), 41

C202 S. 136(3) applied (6.7.2020 at 1.00 p.m.) by The Global Human Rights Sanctions Regulations 2020 (S.I. 2020/680), regs. 1(2), 36(4)(a)

C203 S. 136(3) applied (31.12.2020) by The Democratic People's Republic of Korea (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/411), regs. 1(2), 114(4); S.I. 2019/627, reg. 7(2) 2020 c. 1, Sch. 5 para. 1(1)

C204 S. 136(3) applied (31.12.2020) by The Yemen (Sanctions) (EU Exit) (No. 2) Regulations 2020 (S.I. 2020/1278), regs. 1(2), 53(4)(a); S.I. 2020/1514, reg. 20(2)

C205 S. 136(3) applied (31.12.2020) by The Unauthorised Drilling Activities in the Eastern Mediterranean (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/1474), regs. 1(2), 35(4)(a); S.I. 2020/1514, reg. 24(2)

C206 S. 136(3) applied (31.12.2020) by The Zimbabwe (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/604), regs. 1(2), 53(4); S.I. 2019/627, reg. 13(2) 2020 c. 1, Sch. 5 para. 1(1)

C207 S. 136(3) applied (31.12.2020) by The Counter-Terrorism (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/577), regs. 1(2), 32(4)(a); S.I. 2020/1416, reg. 2(2)

C208 S. 136(3) applied (31.12.2020) by The Somalia (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/642), regs. 1(2), 67(4)(a); S.I. 2020/1514, reg. 12(2)

C209 S. 136(3) applied (31.12.2020) by The Mali (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/705), regs. 1(2), 36(4)(a); S.I. 2020/1514, reg. 13(2)

C210 S. 136(3) applied (31.12.2020) by The Iran (Sanctions) (Nuclear) (EU Exit) Regulations 2019 (S.I. 2019/461), regs. 1(2), 60(4); S.I. 2019/627, reg. 8(2) 2020 c. 1, Sch. 5 para. 1(1)

C211 S. 136(3) applied (31.12.2020) by The Burma (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/136), regs. 1(2), 55(4)(a); S.I. 2019/627, reg. 4(2) 2020 c. 1, Sch. 5 para. 1(1)

C212 S. 136(3) applied (31.12.2020) by The Burundi (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/1142), regs. 1(2), 34(4)(a); S.I. 2020/1514, reg. 2(2)

C213 S. 136(3) applied (31.12.2020) by The Cyber (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/597), regs. 1(2), 34(4)(a); S.I. 2020/1514, reg. 6(2)

C214 S. 136(3) applied (31.12.2020) by The Iraq (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/707), regs. 1(2), 53(4)(a); S.I. 2020/1514, reg. 14(2)

C215 S. 136(3) applied (31.12.2020) by The Counter-Terrorism (International Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/573), regs. 1(2), 46(4); S.I. 2019/627, reg. 11(2) 2020 c. 1, Sch. 5 para. 1(1)

C216 S. 136(3) applied (31.12.2020) by The Bosnia and Herzegovina (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/608), regs. 1(2), 35(4)(a); S.I. 2020/1514, reg. 7(2)

C217 S. 136(3) applied (31.12.2020) by The Republic of Belarus (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/600), regs. 1(2), 52(4); S.I. 2019/627, reg. 12(2) 2020 c. 1, Sch. 5 para. 1(1)

C218 S. 136(3) applied (31.12.2020) by The Syria (United Nations Sanctions) (Cultural Property) (EU Exit) Regulations 2020 (S.I. 2020/1233), regs. 1(2), 23(4)(a); S.I. 2020/1514, reg. 19

C219 S. 136(3) applied (31.12.2020) by The Democratic Republic of the Congo (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/433), regs. 1(2), 53(4); S.I. 2019/627, reg. 5(2) 2020 c. 1, Sch. 5 para. 1(1)

C220 S. 136(3) applied (31.12.2020) by The Russia (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/855), regs. 1(2), 84(4)(a); 2020 c. 1, Sch. 5 para. 1(1)

C221 S. 136(3) applied (31.12.2020) by The ISIL (Da’esh) and Al-Qaida (United Nations Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/466), regs. 1(2), 43(4)(a); S.I. 2019/627, reg. 9(2) 2020 c. 1, Sch. 5 para. 1(1)

C222 S. 136(3) applied (31.12.2020) by The Nicaragua (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/610), regs. 1, 34(4)(a); S.I. 2020/1514, reg. 8(2)

C223 S. 136(3) applied (31.12.2020) by The Sudan (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/753), regs. 1(2), 54(4)(a); S.I. 2020/1514, reg. 15(2)

C224 S. 136(3) applied (31.12.2020) by The Central African Republic (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/616), regs. 1(2), 53(4)(a); S.I. 2020/1514, reg. 10(2)

C225 S. 136(3) applied (31.12.2020) by The Lebanon (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/612), regs. 1(2), 28(4)(a); S.I. 2020/1514, reg. 9

C226 S. 136(3) applied (31.12.2020) by The Misappropriation (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/1468), regs. 1(2), 35(4)(a); S.I. 2020/1514, reg. 23(2)

C227 S. 136(3) applied (31.12.2020) by The Syria (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/792), regs. 1(3), 83(4)(a); 2020 c. 1, Sch. 5 para. 1(1)

C228 S. 136(3) applied (31.12.2020) by The Libya (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/1665), regs. 1(3), 70(4)(a)

C229 S. 136(3) applied (31.12.2020) by The South Sudan (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/438), regs. 1(2), 53(4); S.I. 2019/627, reg. 6(2) 2020 c. 1, Sch. 5 para. 1(1)

C230 S. 136(3) applied (31.12.2020) by The Venezuela (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/135), regs. 1(2), 55(4)(a); S.I. 2019/627, reg. 3(2) 2020 c. 1, Sch. 5 para. 1(1)

C231 S. 136(3) applied (31.12.2020) by The Chemical Weapons (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/618), regs. 1(2), 35(4); S.I. 2019/627, reg. 14(2) 2020 c. 1, Sch. 5 para. 1(1)

C232 S. 136(3) applied (31.12.2020) by The Iran (Sanctions) (Human Rights) (EU Exit) Regulations 2019 (S.I. 2019/134), regs. 1(2), 55(4)(a); S.I. 2019/627, reg. 2(2) 2020 c. 1, Sch. 5 para. 1(1)

C233 S. 136(3) applied (31.12.2020) by The Lebanon (Sanctions) (Assassination of Rafiq Hariri and others) (EU Exit) Regulations 2020 (S.I. 2020/617), regs. 1(2), 29(4)(a); S.I. 2020/1514, reg. 11(2)

C234 S. 136(3) applied (31.12.2020) by The Republic of Guinea-Bissau (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/554), regs. 1(2), 35(4); S.I. 2019/627, reg. 10(2) 2020 c. 1, Sch. 5 para. 1(1)

C235 S. 136(3) applied (31.12.2020) by The Afghanistan (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/948), regs. 1(2), 42(4)(a); S.I. 2020/1514, reg. 16(2)

C236 S. 136(3) applied (26.4.2021 at noon) by The Global Anti-Corruption Sanctions Regulations 2021 (S.I. 2021/488), regs. 1(2), 35(4)(a)

C237 S. 136(3) applied (29.4.2021 at. 5.00 pm) by The Myanmar (Sanctions) Regulations 2021 (S.I. 2021/496), regs. 1(3), 64(4)(a)

C238 S. 136(3) applied (14.12.2021) by The Burundi (Sanctions) Regulations 2021 (S.I. 2021/1404), regs. 1(2), 35(4)(a)

C239 S. 136(3) applied (6.4.2022) by Offensive Weapons Act 2019 (c. 17), ss. 3(14), 70(1)(3); S.I. 2022/418, reg. 2(a) (with reg. 3)

C240 S. 136(3) applied (6.4.2022) by Offensive Weapons Act 2019 (c. 17), ss. 1(10), 70(1)(3); S.I. 2022/418, reg. 2(a) (with reg. 3)

C241 S. 136(3) applied (6.4.2022) by Offensive Weapons Act 2019 (c. 17), ss. 4(12), 70(1)(3); S.I. 2022/418, reg. 2(a) (with reg. 3)

C242 S. 136(3) applied (28.12.2022) by The Haiti (Sanctions) Regulations 2022 (S.I. 2022/1281), regs. 1(2), 44(4)(a)

C243 S. 136(3) applied (14.12.2023) by The Iran (Sanctions) Regulations 2023 (S.I. 2023/1314), regs. 1(2), 83(4)(a) (with regs. 98-100)

C244 S. 136(3) applied (10.10.2024) by The Trade, Aircraft and Shipping Sanctions (Civil Enforcement) Regulations 2024 (S.I. 2024/948), regs. 1(2), 25(4) (with regs. 14, 29)

C245 S. 136(3) applied (3.12.2024 except in so far as it relates to national return to driving courses, 1.2.2025 in so far as not already in force) by S.I. 2007/605, reg. 13(9) (as substituted by The Vehicle Drivers (Certificates of Professional Competence) (Amendment) Regulations 2024 (S.I. 2024/1160), regs. 1(2)(3), 18 (with reg. 26))

C246 S. 136(3) applied (23.7.2025) by The Global Irregular Migration and Trafficking in Persons Sanctions Regulations 2025 (S.I. 2025/902), regs. 1(2), 46(4)

[F1077 136A Time limits for transferred and related cases S

(1) This section applies where the prosecutor recommences proceedings by complaint containing both—

(a) a charge to which proceedings—

(i) transferred to a court by authority of an order made [F1078 under section 137A or 137CA] of this Act; or

(ii) transferred to, or taken at, a court by authority of an order made [F1079 under 137B or 137CB] of this Act,

relate; and

(b) a charge to which previous proceedings at that court relate.

(2) Where this section applies, proceedings for an offence charged in that complaint are, for the purposes of—

(a) section 136 of this Act (so far as applying to the offence);

(b) any provision of any other enactment for a time limit within which proceedings are to be commenced (so far as applying to the offence); and

(c) any rule of law relating to delay in bringing proceedings (so far as applying to the offence),

to be regarded as having been commenced when any previous proceedings for the offence were first commenced.]

Textual Amendments

F1077 S. 136A inserted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 23 , 84 ; S.S.I. 2008/42 , art. 3 , Sch. (subject to arts. 4 - 6)

F1078 Words in s. 136A(1)(a)(i) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) , s. 206(1) , sch. 7 para. 52(a) ; S.S.I. 2011/178 , art. 2 , sch.

F1079 Words in s. 136A(1)(a)(ii) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) , s. 206(1) , sch. 7 para. 52(b) ; S.S.I. 2011/178 , art. 2 , sch.

[F1080 136B Time limits where fixed penalty offer etc. made S

(1) For the purposes of section 136 of this Act, and any provision of any other enactment for a time limit within which proceedings are to be commenced, in calculating the period since a contravention occurred—

(a) where a fixed penalty offer is made under section 302(1) of this Act, the period between the date of the offer and—

(i) the receipt by the procurator fiscal of a notice under section 302(4) of this Act;

(ii) a recall of the fixed penalty by virtue of section 302C of this Act,

shall be disregarded;

(b) where a compensation offer is made under section 302A(1) of this Act, the period between the date of the offer and—

(i) the receipt by the procurator fiscal of a notice under section 302A(4) of this Act;

(ii) a recall of the offer by virtue of section 302C of this Act,

shall be disregarded;

(c) where a work offer is made under section 303ZA(1) of this Act, the period between the date of the offer and—

(i) if the alleged offender does not accept the offer in the manner described in section 303ZA(5) of this Act, the last date for notice of acceptance of the offer;

(ii) if the alleged offender accepts the offer as so described, but fails to complete the subsequent work order, the date specified for completion of the order,

shall be disregarded.

(2) A certificate purporting to be signed by or on behalf of the prosecutor which states a period to be disregarded by virtue of subsection (1) above is sufficient authority for the period to be disregarded.]

Textual Amendments

F1080 S. 136B inserted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 54 , 84 ; S.S.I. 2008/42 , art. 3 , Sch. (subject to art. 6 )

137 Alteration of diets. S

(1) Where a diet has been fixed in a summary prosecution, it shall be competent for the court, on a joint application in writing by the parties or their solicitors, to discharge the diet and fix an earlier diet in lieu.

(2) Where the prosecutor and the accused make joint application to the court (orally or in writing) for postponement of a diet which has been fixed, the court shall discharge the diet and fix a later diet in lieu unless the court considers that it should not do so because there has been unnecessary delay on the part of one of more of the parties.

(3) Where all the parties join in an application under subsection (2) above, the court may proceed under that subsection without hearing the parties.

(4) Where the prosecutor has intimated to the accused that he desires to postpone or accelerate a diet which has been fixed, and the accused refuses, or any of the accused refuse, to make a joint application to the court for that purpose, the prosecutor may make an incidental application for that purpose under section 134 of this Act; and after giving the parties an opportunity to be heard, the court may discharge the diet and fix a later diet or, as the case may be, an earlier diet in lieu.

(5) Where an accused had intimated to the prosecutor and to all the other accused that he desires such postponement or acceleration and the prosecutor refuses, or any of the other accused refuse, to make a joint application to the court for that purpose, the accused who has so intimated may apply to the court for that purpose; and, after giving the parties an opportunity to be heard, the court may discharge the diet and fix a later diet or, as the case may be, an earlier diet in lieu.

[F1081 137ZA [F1082 Refixing diets: non-sitting days] S

(1) This section applies where in a summary prosecution any diet has been fixed for a non-sitting day.

(2) The court may at any time before the non-sitting day—

(a) discharge the diet; and

(b) fix a new diet for a date earlier or later than that for which the discharged diet was fixed.

(3) That is, by acting—

(a) of the court's own accord; and

(b) without the need for a hearing for the purpose.

(4) In the case of a trial diet—

(a) the prosecutor;

(b) the accused,

shall be entitled to an adjournment of the new diet fixed if the court is satisfied that it is not practicable for that party to proceed with the case on that date.

(5) The power of the court under subsection (1) above is not exercisable for the sole purpose of ensuring compliance with a time limit applying in the proceedings.

(6) In subsections (1) and (2) above, a “non-sitting day” is a day on which the court is under this Act not required to sit.]

Textual Amendments

F1081 S. 137ZA inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 39(2), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1082 S. 137ZA heading substituted (30.1.2012) by Act of Adjournal (Amendment of the Criminal Procedure (Scotland) Act 1995) (Refixing diets) 2011 (S.S.I. 2011/430), ss. 1(2), 2(5)

[F1083 137ZB Refixing diets: non-suitable days S

(1) Where in a summary prosecution any diet has been fixed for a day which is no longer suitable to the court it may, of its own accord, at any time before that diet—

(a) discharge the diet; and

(b) fix a new diet for a date earlier or later than that for which the discharged diet was fixed.

F1084 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F1083 S. 137ZB inserted (30.1.2012) by Act of Adjournal (Amendment of the Criminal Procedure (Scotland) Act 1995) (Refixing diets) 2011 (S.S.I. 2011/430), ss. 1(2), 2(4)

F1084 S. 137ZB(2) repealed (25.3.2020) by Act of Adjournal (Criminal Procedure (Scotland) Act 1995 Amendment) (Miscellaneous) 2020 (S.S.I. 2020/93), paras. 1(2), 2(5)

[F1085 137A Transfer of sheriff court summary proceedings within sheriffdom S

(1) Where [F1086 this subsection applies,] the prosecutor may apply to the sheriff for an order for the transfer of the proceedings to a sheriff court in any other district in that sheriffdom and for adjournment to a diet of that court.

[F1087 (1A) Subsection (1) above applies—

(a) where the accused person has been cited in summary proceedings to attend a diet of the court; or

(b) if the accused person has not been cited to such a diet, where summary proceedings against the accused have been commenced in the court.]

(2) On an application under subsection (1) above the sheriff may make such order as is mentioned in that subsection.

Textual Amendments

F1085 Ss. 137A, 137B inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 58(2) , 89 ; S.S.I. 2003/288 , art. 2 , Sch.

F1086 Words in s. 137A(1) substituted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 22(1)(a) , 84 ; S.S.I. 2008/42 , art. 3 , Sch. (subject to arts. 4 - 6)

F1087 S. 137A(1A) inserted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 22(1)(b) , 84 ; S.S.I. 2008/42 , art. 3 , Sch. (subject to arts. 4 - 6)

[F1088 137AA. Transfer of sheriff court summary proceedings within sheriffdom: power of sheriff principal S

Where, because of exceptional circumstances which could not reasonably have been foreseen, it is not practicable for a sheriff court in a sheriffdom to proceed with some or all of the summary cases due to call at a diet, the sheriff principal may, of the sheriff principal’s own accord, make an order for—

(a) the transfer of the proceedings to a sheriff court in any other district in that sheriffdom; and

(b) adjournment to a diet of that court.]

Textual Amendments

F1085 Ss. 137A, 137B inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 58(2) , 89 ; S.S.I. 2003/288 , art. 2 , Sch.

F1088 S. 137AA inserted (25.3.2020) by Act of Adjournal (Criminal Procedure (Scotland) Act 1995 Amendment) (Miscellaneous) 2020 (S.S.I. 2020/93), paras. 1(2), 2(4)

137B Transfer of sheriff court summary proceedings outwith sheriffdom S

[F1089 (1) Where the sheriff clerk informs the prosecutor that, because of exceptional circumstances which could not reasonably have been foreseen, it is not practicable for the sheriff court or any other sheriff court in the sheriffdom to proceed with some or all of the summary cases due to call at a diet, the prosecutor shall as soon as practicable apply to the sheriff principal for an order for—

(a) the transfer of the proceedings to a sheriff court in another sheriffdom; and

(b) adjournment to a diet of that court.]

[F1090 (1A) Where this subsection applies, the prosecutor may apply to the sheriff for an order for—

(a) the transfer of the proceedings to a sheriff court in another sheriffdom; and

(b) adjournment to a diet of that court,

if there are also summary proceedings against the accused person in that court in the other sheriffdom.

(1B) Subsection (1A) above applies—

(a) where the accused person has been cited in summary proceedings to attend a diet of the court; or

(b) if the accused person has not been cited to such a diet, where summary proceedings against the accused have been commenced in the court.

(1C) Where the prosecutor intends to take summary proceedings against an accused person in the sheriff court, the prosecutor may apply to the sheriff for an order for authority for the proceedings to be taken at a sheriff court in another sheriffdom if there are also summary proceedings against the accused person in that court in the other sheriffdom.]

(2) On an application under subsection (1) above the sheriff principal may make the order sought, provided that the sheriff principal of the other sheriffdom consents.

[F1091 (2A) On an application under subsection (1A) or (1C) above, the sheriff is to make the order sought if—

(a) the sheriff considers that it would be expedient for the different cases involved to be dealt with by the same court; and

(b) a sheriff of the other sheriffdom consents.]

(3) On the application of the prosecutor, a sheriff principal who has made an order under subsection (2) above may, if the sheriff principal of the other sheriffdom mentioned in that subsection consents—

(a) revoke; or

(b) vary so as to restrict the effect of,

that order.

[F1092 (4) On the application of the prosecutor, [F1093 the sheriff who has made an order under subsection (2A) above (or another sheriff of the same sheriffdom)] may, if a sheriff of the other sheriffdom mentioned in paragraph (b) of that subsection consents—

(a) revoke; or

(b) vary so as to restrict the effect of,

that order.]]

Textual Amendments

F1085 Ss. 137A, 137B inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 58(2) , 89 ; S.S.I. 2003/288 , art. 2 , Sch.

F1089 S. 137B(1) substituted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 22(2)(a) , 84 ; S.S.I. 2008/42 , art. 3 , Sch.

F1090 S. 137B(1A)-(1C) inserted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 22(2)(b) , 84 ; S.S.I. 2008/42 , art. 3 , Sch.

F1091 S. 137B(2A) inserted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 22(2)(c) , 84 ; S.S.I. 2008/42 , art. 3 , Sch.

F1092 S. 137B(4) added (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 22(2)(d) , 84 ; S.S.I. 2008/42 , art. 3 , Sch.

F1093 Words in s. 137B(4) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) , s. 206(1) , sch. 7 para. 53 ; S.S.I. 2011/178 , art. 2 , sch.

[F1094 137C Custody cases: initiating proceedings outwith sheriffdom S

(1) Where the prosecutor believes—

(a) that, because of exceptional circumstances (and without an order under subsection (3) below), it is likely that there would be an unusually high number of accused persons appearing from custody for the first calling of cases in summary prosecutions in the sheriff courts in the sheriffdom; and

(b) that it would not be practicable for those courts to deal with all the cases involved,

the prosecutor may apply to the sheriff principal for the order referred to in subsection (2) below.

(2) For the purposes of subsection (1) above, the order is for authority for summary proceedings against some or all of the accused persons to be—

(a) taken at a sheriff court in another sheriffdom; and

(b) maintained—

(i) there; or

(ii) at any of the sheriff courts referred to in subsection (1) above as may at the first calling of the case be appointed for further proceedings.

(3) On an application under subsection (1) above, the sheriff principal may make the order sought with the consent of the sheriff principal of the other sheriffdom.

(4) An order under subsection (3) above may be made by reference to a particular period or particular circumstances.]

Textual Amendments

F1094 Ss. 137C, 137D inserted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 22(3) , 84 ; S.S.I. 2008/42 , art. 3 , Sch. (subject to arts. 4 - 6)

[F1095 137CA Transfer of JP court proceedings within sheriffdom S

(1) Subsection (2) applies—

(a) where the accused person has been cited in summary proceedings to attend a diet of a JP court, or

(b) if the accused person has not been cited to such a diet, where summary proceedings against the accused have been commenced in a JP court.

(2) The prosecutor may apply to a justice for an order for the transfer of the proceedings to another JP court in the sheriffdom (and for adjournment to a diet of that court).

(3) On an application under subsection (2), the justice may make the order sought.

(4) In this section and sections 137CB and 137CC, “ justice ” does not include the sheriff.

Textual Amendments

F1095 Ss. 137CA-137CC inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) , ss. 61 , 206(1) ; S.S.I. 2011/178 , art. 2 , sch.

137CB Transfer of JP court proceedings outwith sheriffdom S

(1) Subsection (2) applies where the clerk of a JP court informs the prosecutor that, because of exceptional circumstances which could not reasonably have been foreseen, it is not practicable for the JP court or any other JP court in the sheriffdom to proceed with some or all of the summary cases due to call at a diet.

(2) The prosecutor shall as soon as practicable apply to the sheriff principal for an order for the transfer of the proceedings to a JP court in another sheriffdom (and for adjournment to a diet of that court).

(3) Subsection (4) applies where—

(a) either—

(i) the accused person has been cited in summary proceedings to attend a diet of a JP court, or

(ii) if the accused person has not been cited to such a diet, summary proceedings against the accused have been commenced in a JP court, and

(b) there are also summary proceedings against the accused person in a JP court in another sheriffdom.

(4) The prosecutor may apply to a justice for an order for the transfer of the proceedings to a JP court in the other sheriffdom (and for adjournment to a diet of that court).

(5) Subsection (6) applies where—

(a) the prosecutor intends to take summary proceedings against an accused person in a JP court, and

(b) there are also summary proceedings against the accused person in a JP court in another sheriffdom.

(6) The prosecutor may apply to a justice for an order for authority for the proceedings to be taken at a JP court in the other sheriffdom.

(7) On an application under subsection (2), the sheriff principal may make the order sought with the consent of the sheriff principal of the other sheriffdom.

(8) On an application under subsection (4) or (6), the justice is to make the order sought if—

(a) the justice considers that it would be expedient for the different cases involved to be dealt with by the same court, and

(b) a justice of the other sheriffdom consents.

(9) On the application of the prosecutor, the sheriff principal who has made an order under subsection (7) may, with the consent of the sheriff principal of the other sheriffdom—

(a) revoke the order, or

(b) vary it so as to restrict its effect.

(10) On the application of the prosecutor, the justice who has made an order under subsection (8) (or another justice of the same sheriffdom) may, with the consent of a justice of the other sheriffdom—

(a) revoke the order, or

(b) vary it so as to restrict its effect.

Textual Amendments

F1095 Ss. 137CA-137CC inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) , ss. 61 , 206(1) ; S.S.I. 2011/178 , art. 2 , sch.

137CC Custody cases: initiating JP court proceedings outwith sheriffdom S

(1) Subsection (2) applies where the prosecutor believes—

(a) that, because of exceptional circumstances (and without an order under subsection (3)), it is likely that there would be an unusually high number of accused persons appearing from custody for the first calling of cases in summary prosecutions in the JP courts in the sheriffdom, and

(b) that it would not be practicable for those courts to deal with all the cases involved.

(2) The prosecutor may apply to the sheriff principal for an order authorising summary proceedings against some or all of the accused persons to be—

(a) taken at a JP court in another sheriffdom, and

(b) maintained—

(i) at that JP court, or

(ii) at any of the JP courts referred to in subsection (1) as may at the first calling of the case be appointed for further proceedings.

(3) On an application under subsection (2), the sheriff principal may make the order sought with the consent of the sheriff principal of the other sheriffdom.

(4) An order under subsection (3) may be made by reference to a particular period or particular circumstances.]

Textual Amendments

F1095 Ss. 137CA-137CC inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) , ss. 61 , 206(1) ; S.S.I. 2011/178 , art. 2 , sch.

[F1094 137D Transfer of JP court proceedings to the sheriff court S

(1) Where an accused person is due to be sentenced at a sheriff court for an offence, the prosecutor may apply to the sheriff for an order for—

( a ) the transfer to the sheriff court of any case against the accused in respect of which sentencing is pending at any JP court in the sheriffdom; and

(b) the case to call at a diet of the sheriff court.

(2) On an application under subsection (1) above, the sheriff is to make the order sought if the sheriff considers that it would be expedient for the different cases to be disposed of at the same court at the same time.

(3) If, in a case transferred under subsection (1) above, the finding of guilt was before a justice of the peace, the sentencing powers of the sheriff in the case are restricted to those of the justice.]

Textual Amendments

F1094 Ss. 137C, 137D inserted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 22(3) , 84 ; S.S.I. 2008/42 , art. 3 , Sch. (subject to arts. 4 - 6)

Modifications etc. (not altering text)

C247 S. 137D(1)(a) applied (10.12.2007) by The District Courts and Justices of the Peace (Scotland) Order 2007 (S.S.I. 2007/480) , art. 4(1)(b)

Complaints S

138 Complaints. S

(1) All proceedings under this Part of this Act for the trial of offences or recovery of penalties shall be instituted by complaint signed by the prosecutor or by a solicitor on behalf of a prosecutor other than the procurator fiscal.

(2) The complaint shall be in the form—

(a) set out in Schedule 5 to this Act; or

(b) prescribed by Act of Adjournal,

or as nearly as may be in such form.

(3) A solicitor may appear for and conduct any prosecution on behalf of a prosecutor other than the procurator fiscal.

(4) Schedule 3 to this Act shall have effect as regards complaints under this Act.

139 Complaints: orders and warrants. S

(1) On any complaint under this Part of this Act being laid before a judge of the court in which the complaint is brought, he shall have power on the motion of the prosecutor—

(a) to pronounce an order assigning a diet for the disposal of the case to which the accused may be cited as mentioned in section 141 of this Act;

(b) to grant warrant to apprehend the accused where this appears to the judge expedient;

(c) to grant warrant to search the person, dwelling-house and repositories of the accused and any place where he may be found for any documents, articles, or property likely to afford evidence of his guilt of, or guilty participation in, any offence charged in the complaint, and to take possession of such documents, articles or property;

(d) to grant any other order or warrant of court or warrant which may be competent in the circumstances.

(2) The power of a judge under subsection (1) above—

(a) to pronounce an order assigning a diet for the disposal of the case may be exercised on his behalf by the clerk of court;

(b) to grant a warrant to apprehend the accused shall be exercisable notwithstanding that there is power whether at common law or under any Act to apprehend him without a warrant.

Citation S

140 Citation. S

(1) This Act shall be a sufficient warrant for [F1096 —

(a) F1097 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)] the citation of the accused and witnesses in a summary prosecution to any ordinary sitting of the court or to any special diet fixed by the court or any adjournment thereof.

(2) [F1098 Without prejudice to section 141(2A) of this Act,]such citation shall be in the form prescribed by Act of Adjournal or as nearly as may be in such form and shall, in the case of the accused, proceed on an induciae of at least 48 hours unless in the special circumstances of the case the court fixes a shorter induciae.

[F1099 (2A) Where the charge in the complaint in respect of which an accused is cited is of committing [F1100 an offence listed in subsection (2C)(c)], the citation shall include or be accompanied by notice to the accused—

[F1101 (a) that his case at, or for the purposes of, any relevant hearing F1102 ... in the course of the proceedings (including at any commissioner proceedings) may be conducted only by a lawyer,]

(b) that it is, therefore, in his interests, if he has not already done so, to get the professional assistance of a solicitor; and

(c) that, if he does not engage a solicitor for the purposes of [F1103 the conduct of his case at, or for the purposes of, the hearing] [F1104 (or at any related commissioner proceedings)] , the court will do so.

(2B) A failure to comply with subsection (2A) above does not affect the validity or lawfulness of any such citation or any other element of the proceedings against the accused.]

[F1105 (2C) For the purposes of subsection (2A)—

(a) “commissioner proceedings” means proceedings before a commissioner appointed under section 271I(1) or by virtue of section 272(1)(b),

(b) “relevant hearing” is to be construed in accordance with section 288C(1A) or (as the case may be) 288DC(4),

(c) the list is—

(i) an offence to which section 288C applies (certain sexual offending),

(ii) an offence to which section 288DC applies (domestic abuse cases).]

F1106 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1096 S. 140(1)(a) and “(b)” inserted (1.8.1997) by 1997 c. 48, s. 57(2)(a); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F1097 S. 140(1)(a) repealed (4.10.2004) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 33; S.S.I. 2004/405, art. 2, Sch. 1 (with savings in arts. 3-5)

F1098 Words in s. 140(2) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 61(2), 89; S.S.I. 2003/288, art. 2, Sch.

F1099 S. 140(2A)(2B) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 3, Sch. para. 8; S.S.I. 2002/443, art. 3

F1100 Words in s. 140(2A) substituted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(8)(a)(i); S.S.I. 2018/387, reg. 2 (with reg. 7)

F1101 S. 140(2A)(a) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 54(a); S.S.I. 2011/178, art. 2, sch.

F1102 Words in s. 140(2A)(a) repealed (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(8)(a)(ii); S.S.I. 2018/387, reg. 2 (with reg. 7)

F1103 Words in s. 140(2A)(c) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 54(b); S.S.I. 2011/178, art. 2, sch.

F1104 Words in s. 140(2A)(c) inserted (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 35(2)(a)(ii), 84; S.S.I. 2007/250, art. 3(a)

F1105 S. 140(2C) substituted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(8)(b); S.S.I. 2018/387, reg. 2 (with reg. 7)

F1106 S. 140(3) repealed (1.8.1997) by 1997 c. 48, ss. 57(2)(b), 62(2), Sch. 3; S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

141 Manner of citation. S

[F1107 (1) The citation of the accused or a witness in a summary prosecution to any ordinary sitting of the court or to any special diet fixed by the court or to any adjourned sitting or diet shall be effected by an officer of law or other person—

(a) delivering the citation to him personally; or

(b) leaving it for him—

(i) at his dwelling-house or place of business with a resident or (as the case may be) employee there; or

(ii) where he has no known dwelling-house or place of business, at any other place in which he may be resident at the time.]

(2) Notwithstanding subsection (1) above, citation may also be effected—

(a) where the accused or witness is the master of, or a seaman or person employed in a vessel, if the citation is left with a person on board the vessel and connected with it;

(b) where the accused is [F1108 an organisation other than a body of trustees] [F1109 or a partnership prosecuted by virtue of section 1 of the Partnerships (Prosecution) (Scotland) Act 2013]—

(i) if the citation is left at its ordinary place of business with a partner, director, secretary or other official; or

(ii) if it is cited in the same manner as if the proceedings were in a civil court; F1110 ...

(c) where the accused is a body of trustees, if the citation is left with any one of them who is resident in Scotland or with their known solicitor in Scotland [F1111 or

(d) where the accused is a partnership prosecuted by virtue of section 1 of the Partnerships (Prosecution) (Scotland) Act 2013, if the citation is left with any one of the partners who is resident in Scotland;]

[F1112 ; and in sub-paragraph (b)(i) of this subsection references to the director or secretary or other official, in relation to a limited liability partnership, are to any member of the limited liability partnership]

[F1113 (2A) Notwithstanding subsection (1) above and section 140(2) of this Act, citation of the accused may also be effected by an officer of law affixing to the door of the accused’s dwelling-house or place of business a notice in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form—

(a) specifying the date on which it was so affixed;

(b) informing the accused that he may collect a copy of the complaint from a police station specified in the notice; and

(c) calling upon him to appear and answer the complaint at such diet as shall be so specified.

(2B) Where the citation of the accused is effected by notice under subsection (2A) above, the induciae shall be reckoned from the date specified by virtue of paragraph (a) of that subsection.]

(3) Subject to subsection (4) below [F1114 and without prejudice to the effect of any other manner of citation], the citation of the accused or a witness to a sitting or diet or adjourned sitting or diet as mentioned in subsection (1) above shall be effective if it is F1115 . . .—

(a) in the case of the accused, [F1116 signed by the prosecutor and] sent by post in a registered envelope or through the recorded delivery service [F1117 or by ordinary post]; and

(b) in the case of a witness, sent [F1116 by or on behalf of the prosecutor] by ordinary post,

to the dwelling-house or place of business of the accused or witness or, if he has no known dwelling-house or place of business, to any other place in which he may be resident at the time.

[F1118 (3A) Subject to subsection (4) below and without prejudice to the effect of any other manner of citation, the citation of the accused or a witness to a sitting or diet or adjourned sitting or diet as mentioned in subsection (1) above shall also be effective if an electronic citation is sent—

(a) by or on behalf of the prosecutor; and

(b) by means of electronic communication,

to the home or business email address of the person.]

(4) Where the accused fails to appear at a diet or sitting or adjourned diet or sitting to which he has been cited in the manner provided by this section, [F1119 sections 143(7), 150(3) and 150A(1)] of this Act shall not apply unless it is proved to the court that he received the citation or that its contents came to his knowledge.

(5) The production in court of any letter or other communication [F1120 (including a legible version of an electronic communication)] purporting to be written by or on behalf of an accused who has been cited as mentioned in subsection [F1121 (2A) or] (3) above in such terms as to infer that the contents of such citation came to his knowledge, shall be admissible as evidence of that fact for the purposes of subsection (4) above.

[F1122 (5ZA) The production in court of a legible version of an electronic communication which—

(a) bears to have come from an accused's email address; and

(b) is in such terms as to infer that the contents of an electronic citation sent as mentioned in subsection (3A) above came to the accused's knowledge,

shall (even if not purporting to be written by or on behalf of the accused) be admissible as evidence of those facts for the purposes of subsection (4) above.]

[F1123 (5A) The citation of a witness to a sitting or diet or adjourned sitting or diet as mentioned in subsection (1) above shall be effective [F1124 if—

(a) it is sent by or on behalf of the accused's solicitor by ordinary post—

(i) to the dwelling-house or place of business of the witness; or

(ii) if he has no known dwelling-house or place of business, to any other place in which he may be resident at the time; or

(b) an electronic citation is sent by or on behalf of the accused's solicitor by means of electronic communication to the home or business email address of the witness.]]

[F1125 (5B) Where a witness fails to appear at a diet or sitting or adjourned diet or sitting to which he has been cited in the manner provided by this section, subsection (2) of section 156 of this Act shall not apply unless it is proved to the court that he received the citation or that its contents came to his knowledge.]

(6) When the citation of any person is effected by post in terms of this section or any other provision of this Act to which this section is applied, the induciae shall be reckoned from 24 hours after the time of posting.

[F1126 (6A) When the citation of any person is effected by electronic citation under subsection (3A) above, the induciae shall be reckoned from the end of the day on which the citation was sent.]

(7) It shall be sufficient evidence that

[F1127 (a)] a citation has been sent by post in terms of this section or any other provision of this Act mentioned in subsection (6) above, if there is produced in court a written execution, signed by the person who signed the citation in the form prescribed by Act of Adjournal, or as nearly as may be in such form, together with the post office receipt for the relative registered or recorded delivery letter[F1128 ; or]

[F1129 (b) citation has been effected by notice under subsection (2A) above, if there is produced in court a written execution, in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form, signed by the officer of law who affixed the notice.]

[F1130 (7A) It shall be sufficient evidence that citation has been effected electronically under subsection (3A) or (5A)(b) above if there is produced in court a legible version of an electronic communication which—

(a) is signed by electronic signature by the person who signed the citation;

(b) includes the citation; and

(c) bears to have been sent to the home or business email address of the person being cited.

(7B) In this section, an “electronic citation” is a citation in electronic form which—

(a) is capable of being kept in legible form; and

(b) is signed by electronic signature—

(i) in the case of citation of the accused, by the prosecutor;

(ii) in the case of citation of a witness, by or on behalf of the prosecutor or the accused's solicitor.]

Textual Amendments

F1107 S. 141(1) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 8(a), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1108 Words in s. 141(2)(b) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 68, 206(1); S.S.I. 2011/178, art. 2, sch.

F1109 Words in s. 141(2)(b) inserted (26.4.2013) by Partnerships (Prosecution) (Scotland) Act 2013 (c. 21), ss. 6(5)(a), 8(2) (with s. 8(3)(4))

F1110 Word in s. 141(2) omitted (26.4.2013) by virtue of Partnerships (Prosecution) (Scotland) Act 2013 (c. 21), ss. 6(5)(b), 8(2) (with s. 8(3)(4))

F1111 S. 141(2)(d) and word inserted (26.4.2013) by Partnerships (Prosecution) (Scotland) Act 2013 (c. 21), ss. 6(5)(c), 8(2) (with s. 8(3)(4))

F1112 Words in s. 141(2) inserted (6.4.2001) by S.S.I. 2001/128, reg. 5, Sch. 4 para. 2

F1113 S. 141(2A)(2B) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 61(3)(a), 89; S.S.I. 2003/288, art. 2, Sch.

F1114 Words in s. 141(3) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 61(3)(b), 89; S.S.I. 2003/288, art. 2, Sch.

F1115 Words in s. 141(3) repealed (1.8.1997) by 1997 c. 48, s. 62(1)(2), Sch. 1 para. 21(19)(a)(i), Sch. 3; S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F1116 Words in s. 141(3)(a)(b) inserted (1.8.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(19)(a)(ii)(iii); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F1117 Words in s. 141(3)(a) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 8(b), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1118 S. 141(3A) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 8(c), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1119 Words in s. 141(4) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 14(1), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1120 Words in s. 141(5) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 8(d), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1121 Words in s. 141(5) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 61(3)(c), 89; S.S.I. 2003/288, art. 2, Sch.

F1122 S. 141(5ZA) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 8(e), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1123 S. 141(5A) inserted (1.8.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(19)(b); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F1124 Words in s. 141(5A) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 8(f), 84; S.S.I. 2007/479, art. 3(1), Sch.

F1125 S. 141(5B) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 8(g), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1126 S. 141(6A) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 8(h), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1127 Words in s. 141(7) renumbered as s. 141(7)(a) (27.6.2003) by virtue of Criminal Justice (Scotland) Act 2003 (asp 7), ss. 61(3)(d)(i), 89; S.S.I. 2003/288, art. 2, Sch.

F1128 Word in s. 141(7) added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 61(3)(d)(ii), 89; S.S.I. 2003/288, art. 2, Sch.

F1129 S. 141(7)(b) added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 61(3)(d)(ii), 89; S.S.I. 2003/288, art. 2, Sch.

F1130 S. 141(7A)(7B) added (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 8(i), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

Modifications etc. (not altering text)

C248 S. 141 applied (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 27(2)(3), 117(2); S.S.I. 2017/345, art. 3, sch. (with art. 4)

Children S

142 Summary proceedings against children. S

(1) Where summary proceedings are brought in respect of an offence alleged to have been committed by a child, the sheriff shall sit either in a different building or room from that in which he usually sits or on different days from those on which other courts in the building are engaged in criminal proceedings: and no person shall be present at any sitting for the purposes of such proceedings except—

(a) members and officers of the court;

(b) parties to the case before the court, their solicitors and counsel, and witnesses and other persons directly concerned in that case;

(c) bona fide representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous reports of the proceedings;

(d) such other persons as the court may specially authorise to be present.

(2) A sheriff sitting summarily for the purpose of hearing a charge against, or an application relating to, a person who is believed to be a child may, if he thinks fit to do so, proceed with the hearing and determination of the charge or application, notwithstanding that it is discovered that the person in question is not a child.

(3) When a sheriff sitting summarily has remanded a child for information to be obtained with respect to him, any sheriff sitting summarily in the same place—

(a) may in his absence extend the period for which he is remanded provided that he appears before a sheriff or a justice at least once every 21 days;

(b) when the required information has been obtained, may deal with him finally,

and where the sheriff by whom he was originally remanded has recorded a finding that he is guilty of an offence charged against him it shall not be necessary for any court which subsequently deals with him under this subsection to hear evidence as to the commission of that offence, except in so far as it may consider that such evidence will assist the court in determining the manner in which he should be dealt with.

(4) Any direction in any enactment that a charge shall be brought before a juvenile court shall be construed as a direction that he shall be brought before the sheriff sitting as a court of summary jurisdiction, and no such direction shall be construed as restricting the powers of any justice or justices to entertain an application for bail or for a remand, and to hear such evidence as may be necessary for that purpose.

(5) This section does not apply to summary proceedings before the sheriff in respect of an offence where a child has been charged jointly with a person who is not a child.

Companies S

143 Prosecution of companies, etc. S

(1) Without prejudice to any other or wider powers conferred by statute, this section shall apply in relation to the prosecution by summary procedure of [F1131 an organisation].

(2) Proceedings may be taken against the [F1132 organisation in its] corporate capacity, and in that event any penalty imposed shall be recovered by civil diligence in accordance with section 221 of this Act.

(3) Proceedings may be taken against an individual representative of a partnership, association or body corporate as follows:—

(a) in the case of a partnership or firm, any one of the partners, or the manager or the person in charge or locally in charge of its affairs;

(b) in the case of an association or body corporate, the managing director or the secretary or other person in charge, or locally in charge, of its affairs,

may be dealt with as if he was the person offending, and the offence shall be deemed to be the offence of the partnership, association or body corporate [F1133 ; and in paragraph 3(b) of this subsection references to the managing director or the secretary, in relation to a limited liability partnership, are to any member of the limited liability partnership].

[F1134 (4) [F1135 An organisation] may, for the purpose of—

(a) stating objections to the competency or relevancy of the complaint or proceedings;

(b) tendering a plea of guilty or not guilty;

(c) making a statement in mitigation of sentence,

appear by a representative.

(5) In subsection (4) above, “ representative ” means—

(a) an individual representative as mentioned in subsection (3) above; or

(b) an employee [F1136 , officer or official of the organisation] duly appointed by it for the purpose of the proceedings.

(6) For the purposes of subsection (5)(b) above, a statement—

(a) in the case of a body corporate (other than a limited liability partnership), purporting to be signed by an officer of the body;

(b) in the case of a limited liability partnership, purporting to be signed by a member of the partnership;

(c) in the case of a partnership (other than a limited liability partnership), purporting to be signed by a partner of the partnership;

(d) in the case of an association, purporting to be signed by an officer of the association,

[F1137 (e) in the case of a government department or part of the Scottish Administration, purporting to be signed by a senior officer in the department or part,]

to the effect that the person named in the statement has been appointed as the representative for the purposes of any proceedings to which this section applies is sufficient evidence of such appointment.

(7) Where at a diet (apart from a diet fixed for the first calling of the case) [F1138 an organisation] does not appear as mentioned in subsection (4) above, or by counsel or a solicitor, the court may—

(a) on the motion of the prosecutor or, in relation to sentencing, of its own accord; and

(b) if satisfied as to the matters specified in subsection (8) below,

proceed to hear and dispose of the case in the absence of the [F1139 organisation].

(8) The matters referred to in subsection (7)(b) above are—

(a) that citation has been effected or other intimation of the diet has been received; and

(b) that it is in the interests of justice to proceed as mentioned in subsection (7) above.

(9) The reference in subsection (7) above to proceeding to hear and dispose of the case includes, in relation to a trial diet, proceeding with the trial.]

Textual Amendments

F1131 Words in s. 143(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 67(2), 206(1); S.S.I. 2011/178, art. 2, sch.

F1132 Words in s. 143(2) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 67(3), 206(1); S.S.I. 2011/178, art. 2, sch.

F1133 Words in s. 143(3) inserted (6.4.2001) by S.S.I. 2001/128, reg. 5, Sch. 4 para. 3

F1134 S. 143(4)-(9) added (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 17, 84; S.S.I. 2008/42, art. 3, Sch.

F1135 Words in s. 143(4) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 67(4), 206(1); S.S.I. 2011/178, art. 2, sch.

F1136 Words in s. 143(5)(b) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 67(5), 206(1); S.S.I. 2011/178, art. 2, sch.

F1137 S. 143(6)(e) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 67(6), 206(1); S.S.I. 2011/178, art. 2, sch.

F1138 Words in s. 143(7) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 67(7)(a), 206(1); S.S.I. 2011/178, art. 2, sch.

F1139 Word in s. 143(7) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 67(7)(b), 206(1); S.S.I. 2011/178, art. 2, sch.

Modifications etc. (not altering text)

C249 S. 143 applied (31.5.2002) by Anti-terrorism, Crime and Security Act 2001 (c. 24), s. 69(4)(b); S.I. 2002/1279, art. 2

S. 143 applied (1.4.2005) by Gangmasters (Licensing) Act 2004 (c. 11), ss. 21, 29; S.I. 2005/447, arts. 1, 2

S. 143 applied (1.4.2005) by Gangmasters (Licensing) Act 2004 (c. 11), ss. 22, 29; S.I. 2005/447, arts. 1, 2

S. 143 applied (20.1.2007, 6.4.2007, 1.10.2007, 6.4.2008, 1.10.2008 for certain purposes and 1.10.2009 otherwise) by Companies Act 2006 (c. 46), ss. 1130(2)(b)(ii), 1300 (with savings in s. 1133); S.I. 2006/3428, art. 3(2) (with art. 6); S.I. 2007/1093, art. 2(2)(c) (with arts. 4, 11); S.I. 2007/2194, art. 2(1)(l)(3)(h) (with art. 12); S.I. 2007/3495, arts. {3(3)(g)},{5(3)(a)} (with arts. 7, 12); S.I. 2008/2860, art. 3(s) (with arts. 5,7,8, Sch. 2) (as amended by S.I. 2009/1802, art. 18, S.I. 2009/2476, reg. 2)

C250 S. 143 applied (6.4.2008) by Serious Crime Act 2007 (c. 27), ss. 31(6)(b)(ii), 94; S.I. 2008/755, art. 15(1) (subject to paras. (2)(3))

S. 143 applied (6.4.2008) by Serious Crime Act 2007 (c. 27), ss. 32(5)(b)(ii), 94; S.I. 2008/755, art. 15(1) (subject to paras. (2)(3))

C251 S. 143 applied (1.1.2010) by The Common Agricultural Policy Single Payment and Support Schemes (Integrated Administration and Control System) Regulations 2009 (S.I. 2009/3263), reg. 12(2)(b)(ii)

C252 S. 143 applied (6.4.2010) by The Detergents Regulations 2010 (S.I. 2010/740), reg. 24(2)(b)(ii)

C253 S. 143 applied (with modifications) (30.12.2011) by The Wine Regulations 2011 (S.I. 2011/2936), regs. 1(2), 16(2)(c) (with reg. 3(9))

C254 S. 143 applied (1.2.2007 for W. for specified purposes, 2.4.2007 for W. for specified purposes, 1.7.2007 for E. for specified purposes, 22.4.2008 for E.W.S. for specified purposes, 13.12.2008 for W. for specified purposes, 1.8.2012 for N.I. for specified purposes) by Health Act 2006 (c. 28), ss. 77(4)(b), 83(4)(a)(6)(b)(7); S.I. 2007/204, arts. 2(c), 3(c); S.I. 2007/1375, art. 2(b); S.I. 2008/1147, art. 3(b)(c); S.I. 2008/3171, art. 2(b); S.R. 2012/307, art. 2(b)

C255 S. 143 applied (with modifications) (1.3.2014) by The Olive Oil (Marketing Standards) Regulations 2014 (S.I. 2014/195), regs. 1, 15(2)(c)

C256 S. 143 applied (12.12.2014) by The Immigration Act 2014 (Bank Accounts) Regulations 2014 (S.I. 2014/3085), regs. 1, 23(4)(b)

C257 S. 143 applied (with modifications) (16.11.2015) by The Single Common Market Organisation (Emergency Aid for Milk Producers) Regulations 2015 (S.I. 2015/1896), regs. 1(2), 13(2)(c)

C258 S. 143 applied (1.1.2016) by The Small and Medium Sized Business (Finance Platforms) Regulations 2015 (S.I. 2015/1946), regs. 1(2), 35(4)(b)

C259 S. 143 applied (1.1.2016) by The Small and Medium Sized Business (Credit Information) Regulations 2015 (S.I. 2015/1945), regs. 1(2), 38(4)(b)

C260 S. 143 applied (13.7.2016) by The Financial Services and Markets Act 2000 (Transparency of Securities Financing Transactions and of Reuse) Regulations 2016 (S.I. 2016/715), regs. 1(2), 27(4)(b)

C261 S. 143 applied (25.11.2016) by Immigration Act 2016 (c. 19), ss. 29(4)(b)(ii), 94(1); S.I. 2016/1037, reg. 4(c)

C262 S. 143 applied (25.11.2016) by Immigration Act 2016 (c. 19), ss. 30(3)(b)(ii), 94(1); S.I. 2016/1037, reg. 4(c)

C263 S. 143 applied (1.10.2018) by The Nuclear Security (Secretary of State Security Directions) Regulations 2018 (S.I. 2018/408), regs. 1(2), 14(3)(b) (with reg. 7)

C264 S. 143 applied (1.12.2019) by The Invasive Alien Species (Enforcement and Permitting) Order 2019 (S.I. 2019/527), arts. 1(1), 11(2)(b)(ii) (with art. 1(2)(4)) (as amended by S.I. 2019/1213, arts. 1, 2(2))

First diet S

144 Procedure at first diet. S

(1) Where the accused is present at the first calling of the case in a summary prosecution and—

(a) the complaint has been served on him, or

(b) the complaint or the substance thereof has been read to him, or

(c) he has legal assistance in his defence,

he shall, unless the court adjourns the case under the section 145 [F1140 or 145ZA] of this Act and subject to subsection (4) below, be asked to plead to the charge.

(2) Where the accused is not present at a calling of the case in a summary prosecution and either—

(a) the prosecutor produces to the court written intimation that the accused pleads not guilty or pleads guilty F1141 . . .

(b) counsel or a solicitor, or a person not being counsel or a solicitor who satisfies the court that he is authorised by the accused, appears on behalf of the accused and tenders a plea of not guilty or a plea of guilty,

subsection (3) below shall apply.

(3) Where this subsection applies—

(a) in the case of a plea of not guilty, this Part of this Act except section 146(2) shall apply in like manner as if the accused had appeared and tendered the plea; and

(b) in the case of a plea of guilty, the court may, if the prosecutor accepts the plea, proceed to hear and dispose of the case in the absence of the accused in like manner as if he had appeared and pled guilty, or may, if it thinks fit, continue the case to another diet and require the attendance of the accused with a view to pronouncing sentence in his presence.

[F1142 (3ZA) Where the prosecutor is not satisfied, in relation to a written intimation of a plea—

(a) that the intimation of the plea has been made or authorised by the accused; or

(b) that the terms of the plea are clear,

the court may continue the case to another diet.

(3ZB) The clerk of court may perform the functions of the court under—

(a) subsections (2) and (3) above in relation to a plea of not guilty;

(b) subsection (3ZA) above,

without the court being properly constituted.]

[F1143 (3A) Where an accused charged with [F1144 an offence listed in subsection (3AA)(b)] is present, whether or not with a solicitor, at a calling of the case in a summary prosecution, he shall be told—

[F1145 (a) that his case at, or for the purposes of, any relevant hearing F1146 ... in the course of the proceedings may be conducted only by a lawyer,]

(b) that it is, therefore, in his interests, if he has not already done so, to get the professional assistance of a solicitor; and

(c) that if he does not engage a solicitor for the purposes of [F1147 the conduct of his case at, or for the purposes of, the hearing], the court will do so.

[F1148 (3AA) For the purposes of subsection (3A)—

(a) “relevant hearing” is to be construed in accordance with section 288C(1A) or (as the case may be) 288DC(4),

(b) the list is—

(i) an offence to which section 288C applies (certain sexual offending),

(ii) an offence to which section 288DC applies (domestic abuse cases).]

(3B) A failure to comply with subsection (3A) above does not affect the validity or lawfulness of anything done at the calling of the case or any other element of the proceedings against the accused.]

(4) Any objection to the competency or relevancy of a summary complaint or the proceedings thereon, or any denial that the accused is the person charged by the police with the offence shall be stated before the accused pleads to the charge or any plea is tendered on his behalf.

(5) No objection or denial such as is mentioned in subsection (4) above shall be allowed to be stated or issued at any future diet in the case except with the leave of the court, which may be granted only on cause shown.

(6) Where in pursuance of subsection (3)(b) above the court proceeds to hear and dispose of a case in the absence of the accused, it shall not pronounce a sentence of imprisonment or of detention in a young offenders institutionF1149 ... or other establishment.

(7) In this section a reference to a plea of guilty shall include a reference to a plea of guilty to only part of the charge, but where a plea of guilty to only part of a charge is not accepted by the prosecutor it shall be deemed to be a plea of not guilty.

(8) It shall not be competent for any person appearing to answer a complaint, or for counsel or a solicitor appearing for the accused in his absence, to plead want of due citation or informality therein or in the execution thereof.

(9) In this section, a reference to the first calling of a case includes a reference to any adjourned diet fixed by virtue of section 145 [F1150 , 145ZA][F1151 or 145A] of this Act.

Textual Amendments

F1140 Words in s. 144(1) inserted (30.6.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 75(a)(i), 79; S.S.I. 2007/334, art. 2(a), Sch. 1

F1141 Words in s. 144(2)(a) repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 9(1)(a), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1142 S. 144(3ZA)(3ZB) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 9(1)(b), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1143 S. 144(3A)(3B) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 3, Sch. para. 9; S.S.I. 2002/443, art. 3

F1144 Words in s. 144(3A) substituted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(9)(a)(i); S.S.I. 2018/387, reg. 2 (with reg. 7)

F1145 S. 144(3A)(a) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 55(a); S.S.I. 2011/178, art. 2, sch.

F1146 Words in s. 144(3A)(a) repealed (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(9)(a)(ii); S.S.I. 2018/387, reg. 2 (with reg. 7)

F1147 Words in s. 144(3A)(c) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 55(b); S.S.I. 2011/178, art. 2, sch.

F1148 S. 144(3AA) inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(9)(b); S.S.I. 2018/387, reg. 2 (with reg. 7)

F1149 Words in s. 144(6) repealed (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), s. 38(3), sch. para. 16(3); S.S.I. 2024/211, reg. 2(j)(ii) (with reg. 3)

F1150 Words in s. 144(9) inserted (30.6.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 75(a)(ii), 79; S.S.I. 2007/334, art. 2(a), Sch. 1

F1151 Words in s. 144(9) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 63(2), 89; S.S.I. 2003/288, art. 2, Sch.

145 Adjournment for inquiry at first calling. S

(1) [F1152 Where the accused is present] at the first calling of a case in a summary prosecution the court may, in order to allow time for inquiry into the case or for any other cause which it considers reasonable, adjourn the case under this section, for such period as it considers appropriate, without calling on the accused to plead to any charge against him but remanding him in custody or on bail or ordaining him to appear at the diet thus fixed; and, subject to subsections (2) and (3) below, the court may from time to time so adjourn the case.

(2) Where the accused is remanded in custody, the total period for which he is so remanded under this section shall not exceed 21 days and no one period of adjournment shall, except on special cause shown, exceed 7 days.

(3) Where the accused is remanded on bail or ordained to appear, no one period of adjournment shall exceed 28 days.

Textual Amendments

F1152 Words in s. 145(1) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 63(3), 89; S.S.I. 2003/288, art. 2, Sch.

[F1153 145ZA Adjournment where assessment order made at first calling S

Where the accused is present at the first calling of a case in a summary prosecution the court may, where it makes an assessment order in respect of the accused, adjourn the case under this section for a period not exceeding 28 days without calling on the accused to plead to any charge against him; and the court may so adjourn the case for a further period not exceeding 7 days.]

Textual Amendments

F1153 S. 145ZA inserted (30.6.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 75(b), 79; S.S.I. 2007/334, art. 2(a), Sch. 1

[F1154 145A Adjournment at first calling to allow accused to appear etc. S

(1) Without prejudice to section [F1155 150] of this Act, where the accused is not present at the first calling of the case in a summary prosecution, the court may (whether or not the prosecutor is able to provide evidence that the accused has been duly cited) adjourn the case under this section for such period as it considers appropriate; and subject to subsections (2) and (3) below, the court may from time to time so adjourn the case.

(2) An adjournment under this section shall be—

(a) for the purposes of allowing—

(i) the accused to appear in answer to the complaint; or

(ii) time for inquiry into the case; or

(b) for any other cause the court considers reasonable.

(3) No one period of adjournment under this section shall exceed 28 days.

[F1156 (4) The clerk of court may perform the functions of the court under subsection (1) above without the court being properly constituted.]]

Textual Amendments

F1154 S. 145A inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 63(4), 89; S.S.I. 2003/288, art. 2, Sch.

F1155 Words in s. 145A(1) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 14(2), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1156 S. 145A(4) added (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 9(2), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

146 Plea of not guilty. S

(1) This section applies where the accused in a summary prosecution—

(a) pleads not guilty to the charge; or

(b) pleads guilty to only part of the charge and the prosecutor does not accept the partial plea.

(2) The court may proceed to trial at once unless either party moves for an adjournment and the court considers it expedient to grant it.

(3) The court may adjourn the case for trial to as early a diet as is consistent with the just interest of both parties, and the prosecutor shall, if requested by the accused, furnish him with a copy of the complaint if he does not already have one.

[F1157 (3ZA) Where a case is adjourned under subsection (3) above, the court shall intimate to the accused the trial diet assigned and any intermediate diet fixed.

(3ZB) When intimating a diet under subsection (3ZA) above, the court shall inform the accused that, if he fails to appear at any diet in the proceedings in respect of the case, the court might hear and dispose of the case in his absence.]

[F1158 (3A) Where, under subsection (3) above, the prosecutor furnishes an accused charged with [F1159 an offence listed in subsection (3AA)(b)] with a copy of the complaint, it shall be accompanied by a notice to the accused—

[F1160 (a) that his case at, or for the purposes of, any relevant hearing F1161 ... in the course of the proceedings may be conducted only by a lawyer,]

(b) that it is, therefore, in his interests, if he has not already done so, to get the professional assistance of a solicitor; and

(c) that, if he does not engage a solicitor for the purposes of [F1162 the conduct of his case at, or for the purposes of, the hearing], the court will do so.

[F1163 (3AA) For the purposes of subsection (3A)—

(a) “relevant hearing” is to be construed in accordance with section 288C(1A) or (as the case may be) 288DC(4),

(b) the list is—

(i) an offence to which section 288C applies,

(ii) an offence to which section 288DC applies.]

(3B) A failure to comply with subsection (3A) above does not affect the validity or lawfulness of any such copy complaint or any other element of the proceedings against the accused.]

(4) Where the accused is brought before the court from custody the court shall inform the accused of his right to an adjournment of the case for not less than 48 hours and if he requests such adjournment before the prosecutor has commenced his proof, subject to subsection (5) below, the adjournment shall be granted.

(5) Where the court considers that it is necessary to secure the examination of witnesses who otherwise would not be available, the case may proceed to trial at once or on a shorter adjournment than 48 hours.

(6) Where the accused is in custody, he may be committed to prison or to legalised police cells or to any other place to which he may lawfully be committed pending trial—

(a) if he is neither granted bail nor ordained to appear; or

(b) if he is granted bail on a condition imposed under section 24(6) of this Act that a sum of money is deposited in court, until the accused or a cautioner on his behalf has so deposited that sum.

(7) The court may from time to time at any stage of the case on the motion of either party or ex proprio motu grant such adjournment as may be necessary for the proper conduct of the case, and where from any cause a diet has to be continued from day to day it shall not be necessary to intimate the continuation to the accused.

(8) It shall not be necessary for the prosecutor to establish a charge or part of a charge to which the accused pleads guilty.

(9) The court may, in any case where it considers it expedient, permit any witness for the defence to be examined prior to evidence for the prosecution having been led or concluded, but in any such case the accused shall be entitled to lead additional evidence after the case for the prosecution is closed.

Textual Amendments

F1157 S. 146(3ZA)(3ZB) added (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 10, 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1158 S. 146(3A)(3B) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 3, Sch. para. 10; S.S.I. 2002/443, art. 3

F1159 Words in s. 146(3A) substituted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(10)(a)(i); S.S.I. 2018/387, reg. 2 (with reg. 7)

F1160 S. 146(3A)(a) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 56(a); S.S.I. 2011/178, art. 2, sch.

F1161 Words in s. 146(3A)(a) repealed (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(10)(a)(ii); S.S.I. 2018/387, reg. 2 (with reg. 7)

F1162 Words in s. 146(3A)(c) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 56(b); S.S.I. 2011/178, art. 2, sch.

F1163 S. 146(3AA) inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(10)(b); S.S.I. 2018/387, reg. 2 (with reg. 7)

Pre-trial procedure S

147 Prevention of delay in trials. S

(1) Subject to subsections (2) and (3) below, a person charged with an offence in summary proceedings shall not be detained in that respect for a total of more than 40 days after the bringing of the complaint in court unless his trial is commenced within that period, failing which he shall be liberated forthwith and thereafter he shall be for ever free from all question or process for that offence.

[F1164 (2) On an application made for the purpose, the sheriff may, on cause shown—

(a) extend the period mentioned in subsection (1) above; and

(b) order the accused to be detained awaiting trial,

for such period as the sheriff thinks fit.

(2A) Before determining an application under subsection (2) above, the sheriff shall give the parties an opportunity to be heard.

(2B) However, where all the parties join in the application, the sheriff may determine the application without hearing the parties and, accordingly, may dispense with any hearing previously appointed for the purpose of considering the application.]

(3) The grant or refusal of any application to extend the period mentioned in subsection (1) above may be appealed against by note of appeal presented to the [F1165 Sheriff Appeal Court]; and that Court may affirm, reverse or amend the determination made on such application.

(4) For the purposes of this section, a trial shall be taken to commence when the first witness is sworn.

Textual Amendments

F1164 S. 147(2)-(2B) substituted (10.3.2008) for s. 147(2) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 11, 84; S.S.I. 2008/42, art. 3, (subject to art. 4)

F1165 Words in s. 147(3) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(4) (with art. 4)

Modifications etc. (not altering text)

C265 S. 147 applied (with modifications) (1.10.1997) by S.I. 1997/1776, art. 2, Sch. 1 paras. 5-7; S.I. 1997/2200, arts. 1, 2 (subject to transitional provisions in art. 5)

S. 147 extended (1.10.1997) by 1997 c. 43, s. 41, Sch. 1 Pt. II para. 10(1)(a); S.I. 1997/2200, art. 2 (subject to transitional provisions in art. 5)

S. 147 modified (1.10.1997) by 1997 c. 43, s. 41, Sch. 1 Pt. II para. 11(1)(a); S.I. 1997/2200, art. 2 (subject to transitional provisions in art. 5)

C266 S. 147 applied (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), ss. 6(7)(8)(b), 17(3); S.S.I. 2011/365, art. 3

148 Intermediate diet. S

(1) [F1166 The court may, when adjourning a case for trial in terms of section 146(3) of this Act, and may also, at any time thereafter, whether before, on or after any date assigned as a trial diet], fix a diet (to be known as an intermediate diet) for the purpose of ascertaining, so far as is reasonably practicable, whether the case is likely to proceed to trial on [F1166 any date assigned as a trial diet] and, in particular—

(a) the state of preparation of the prosecutor and of the accused with respect to their cases;

(b) whether the accused intends to adhere to the plea of not guilty; and

[F1167 (ba) how many witnesses are required by—

(i) the prosecutor;

(ii) the accused,

to attend the trial;]

(c) the extent to which the prosecutor and the accused have complied with the duty under section 257(1) of this Act.

[F1168 (1A) At an intermediate diet in summary proceedings in the sheriff court, the court shall also—

(a) ascertain whether subsection (1B) below applies to any person who is to give evidence at or for the purposes of the trial or to the accused, and

(b) if so, consider whether it should make an order under section 271A(7) or 271D(2) of this Act in relation to person or, as the case may be, the accused.

(1B) This subsection applies—

(a) to a person who is to give evidence at or for the purposes of the trial if that person is, or is likely to be, a vulnerable witness,

(b) to the accused if, were he to give evidence at or for the purposes of the trial, he would be, or would be likely to be, a vulnerable witness.]

(2) Where at an intermediate diet the court concludes that the case is unlikely to proceed to trial on the date assigned for the trial diet, the court—

(a) [F1169 may] postpone the trial diet; and

(b) may fix a further intermediate diet.

(3) [F1170 The] court may, if it considers it appropriate to do so, adjourn an intermediate diet.

[F1171 (3AA) At an intermediate diet, the court shall also dispose of any application for a witness anonymity order under section 271P of this Act of which notice has been given in accordance with section 271Q(2)(a) of this Act.]

[F1172 (3A) At an intermediate diet, the court may consider an application for the purposes of subsection (1) of section 275 of this Act; and, notwithstanding subsection (1) above, the court may fix a diet under that subsection for the purpose only of considering such an application.

(3B) Subsection (3A) above shall not operate so as to relieve any court prescribed by order under subsection (7) below of its duty, which arises by virtue of the operation of that subsection, to fix an intermediate diet for the purpose mentioned in subsection (1) above.]

[F1173 (4) At an intermediate diet, the court shall make such enquiry of the parties as is reasonably required for the purposes of subsections (1) and (3A) above.]

(5) The accused shall attend an intermediate diet of which he has received intimation or to which he has been cited unless—

(a) he is legally represented; and

[F1174 (b) the court considers that, on cause shown, he need not attend.]

(6) A plea of guilty may be tendered at the intermediate diet.

(7) The foregoing provisions of this section shall have effect as respects any court prescribed by the Secretary of State by order, in relation to proceedings commenced after such date as may be so prescribed, with the following modifications—

(a) in subsection (1), for the word “may” [F1175 where it first appears,] there shall be substituted “shall, subject to subsection (1A) below,”; and

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

“(1A) If, on a joint application by the prosecutor and the accused made at any time before the commencement of the intermediate diet, the court considers it inappropriate to have such a diet, the duty under subsection (1) above shall not apply and the court shall discharge any such diet already fixed.

(1B) The court may consider an application under subsection (1A) above without hearing the parties.”.

(8) An order under subsection (7) above shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments

F1166 Words in s. 148(1) substituted (retrospective to 1.4.1996) by 1998 c. 10, s. 1(1)(a)(i)(ii)(2)

F1167 S. 148(1)(ba) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 18(a), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1168 S. 148(1A)(1B) inserted (1.4.2007 for certain purposes and otherwise 1.4.2008) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 2(5)(a), 25; S.S.I. 2007/101, art. 2, Sch. (with art. 4); S.S.I. 2008/57, art. 2 (with art. 3)

F1169 Words in s. 148(2)(a) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 18(b), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1170 Word in s. 148(3) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 18(c), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1171 S. 148(3AA) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 90(2)(b), 206(1); S.S.I. 2011/178, art. 2, sch.

F1172 S. 148(3A)(3B) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 8(5)(a); S.S.I. 2002/443, art. 3 (with art. 4(5))

F1173 S. 148(4) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 18(d), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1174 S. 148(5)(b) substituted (10.10.2014) by Act of Adjournal (Amendment of the Criminal Procedure (Scotland) Act 1995 and Criminal Procedure Rules 1996) (Miscellaneous) 2014 (S.S.I. 2014/242), para. 2(2)

F1175 Words in s. 148(7)(a) inserted (retrospective to 1.4.1996) by 1998 c. 10, s. 1(1)(b)(2)

148A [F1176 Interim diet required in certain sexual or domestic abuse cases] S

(1) Where, in a case which is adjourned for trial, the charge is of committing [F1177 an offence listed in subsection (10)], the court shall order that, before the trial diet, there shall be a diet under this section and ordain the accused then to attend.

(2) At a diet under this section, the court shall ascertain whether or not the accused has engaged a solicitor for the purposes of his defence at the trial.

(3) Where, following inquiries for the purposes of subsection (2) above, it appears to the court that the accused has not engaged a solicitor for the purposes of his defence at his trial, it may adjourn the diet under this section for a period of not more than 48 hours and ordain the accused then to attend.

(4) A diet under this section may be conjoined with an intermediate diet.

(5) A court may, at a diet under this section, postpone the trial diet.

(6) The court may dispense with a diet under this section previously ordered, but only if a solicitor engaged by the accused for the purposes of the defence of the accused at the trial has, in writing—

(a) confirmed his engagement for that purpose; and

(b) requested that the diet be dispensed with.

(7) Where—

(a) a solicitor has requested, under subsection (6) above, that a diet under this section be dispensed with; and

(b) before that diet has been held or dispensed with, the solicitor—

(i) is dismissed by the accused; or

(ii) withdraws,

the solicitor shall forthwith inform the court in writing of those facts.

(8) It is the duty of a solicitor who—

(a) was engaged for the purposes of the defence of the accused at the trial—

(i) at the time of a diet under this section; or

(ii) in the case of a diet which, under subsection (6) above, is dispensed with, at the time when it was so dispensed with; and

(b) after that time but before the trial diet—

(i) is dismissed by the accused; or

(ii) withdraws,

forthwith to inform the court in writing of those facts.

(9) On being so informed, the court shall order a further diet under this section.

[F1178 (10) For the purposes of this section, the list is—

(a) an offence to which section 288C applies,

(b) an offence to which section 288DC applies.]

Textual Amendments

F1176 S. 148A title substituted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(12); S.S.I. 2018/387, reg. 2 (with reg. 7)

F1177 Words in s. 148A(1) substituted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(11)(a); S.S.I. 2018/387, reg. 2 (with reg. 7)

F1178 S. 148A(10) inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(11)(b); S.S.I. 2018/387, reg. 2 (with reg. 7)

[F1179 148B Pre-trial procedure in sheriff court where no intermediate diet is fixed S

(1) Where, in any summary proceedings in the sheriff court, no intermediate diet is fixed, the court shall, at the trial diet before the first witness is sworn—

(a) ascertain whether subsection (2) below applies to any person who is to give evidence at or for the purposes of the trial or to the accused and, if so, consider whether it should make an order under section 271A(7) or 271D(2) of this Act in relation to the person or, as the case may be, the accused, and

(b) if—

(i) section 288E of this Act applies to the proceedings, or

(ii) an order under section 288F(2) has been made in the proceedings,

ascertain whether or not the accused has engaged a solicitor for the purposes of his defence at the trial.

(2) This subsection applies—

(a) to a person who is to give evidence at or for the purposes of the trial if that person is, or is likely to be, a vulnerable witness,

(b) to the accused if, were he to give evidence at or for the purposes of the trial, he would be, or be likely to be, a vulnerable witness.

(3) Where, following inquiries for the purposes of subsection (1)(b) above, it appears to the court that the accused has not engaged a solicitor for the purposes of his defence at the trial, the court may adjourn the trial diet for a period of not more than 48 hours and ordain the accused then to attend.

(4) At the trial diet, the court may ask the prosecutor and the accused any question in connection with any matter which it is required to ascertain or consider under subsection (1) above.]

Textual Amendments

F1179 S. 148B inserted (1.4.2007 for certain purposes and otherwise 1.4.2008) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 9, 25; S.S.I. 2007/101, art. 2 (with art. 4); S.S.I. 2008/57, art. 2 (with art. 3)

[F1180 148C Engagement, dismissal and withdrawal of solicitor representing accused S

(1) In summary proceedings, it is the duty of a solicitor who is engaged by the accused for the purposes of his defence at trial to notify the court and the prosecutor of that fact forthwith in writing.

(2) The duty under subsection (1) above shall be regarded as having been complied with if the solicitor has represented the accused at the first calling of the case—

(a) by submitting a written intimation of the accused's plea as described in subsection (2)(a) of section 144 of this Act; or

(b) by appearing on behalf of the accused—

(i) as described in subsection (2)(b) of that section; or

(ii) with the accused present,

and has, when acting as described in paragraph (a) or (b) above, notified the court and the prosecutor orally or in writing that the solicitor is also engaged by the accused for the purposes of his defence at trial.

(3) Where a solicitor referred to in subsection (1) above—

(a) is dismissed by the accused; or

(b) withdraws,

it is the duty of the solicitor to notify the court and the prosecutor of that fact forthwith in writing.

Textual Amendments

F1180 Ss. 148C, 148D inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 21, 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

148D Service etc. on accused through a solicitor S

(1) In summary proceedings, anything which is to be served on or given, notified or otherwise intimated to, the accused (except service of a complaint) shall be taken to be so served, given, notified or intimated if it is, in such form and manner as may be prescribed by Act of Adjournal, served on or given, notified or intimated to (as the case may be) the solicitor described in subsection (2) below at that solicitor's place of business.

(2) That solicitor is any solicitor—

(a) who—

(i) has given notice under subsection (1) of section 148C of this Act that that solicitor is engaged by the accused for the purposes of the accused's defence at the trial; and

(ii) has not given notice under subsection (3) of that section;

(b) who has represented the accused as mentioned in subsection (2) of that section; and—

(i) has given notice as mentioned in that subsection; and

(ii) has not given notice under subsection (3) of that section; or

(c) who—

(i) has been appointed to act for the purposes of the accused's defence at the trial under section 150A(4)(b) or (7) or 288D of this Act; and

(ii) has not been relieved of the appointment by the court.]

Textual Amendments

F1180 Ss. 148C, 148D inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 21, 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1181 149. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1183 [F1182 149A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F1184 149B Notice of defences S

(1) It is not competent for an accused in a summary prosecution to found on a defence to which this subsection applies unless—

(a) notice of the defence has been given to the prosecutor in accordance with subsection (5) below; or

(b) the court, on cause shown, allows the accused to found on the defence despite the failure so to give notice of it.

(2) Subsection (1) above applies—

(a) to a special defence;

(b) to a defence which may be made out by leading evidence calculated to exculpate the accused by incriminating a co-accused;

(c) to a defence of automatism or coercion;

(d) in a prosecution for an offence to which section 288C of this Act applies, to a defence of consent.

[F1185 (2A) Subsection (1) does not apply where—

(a) the accused lodges a defence statement under section 125 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13),

(b) the statement is lodged—

(i) where an intermediate diet is to be held, at or before the diet, or

(ii) where such a diet is not to be held, no later than 10 clear days before the trial diet, and

(c) the accused's defence consists of or includes a defence to which that subsection applies.]

(3) In subsection (2)(d) above, the reference to a defence of consent is a reference to the defence which is stated by reference to the complainer's consent to the act which is the subject matter of the charge or the accused's belief as to that consent.

(4) In subsection (3) above, “complainer” has the same meaning as in section 274 of this Act.

(5) Notice of a defence is given in accordance with this subsection if it is given—

(a) where an intermediate diet is to be held, at or before that diet; or

(b) where such a diet is not to be held, no later than 10 clear days before the trial diet,

together with the particulars mentioned in subsection (6) below.

(6) The particulars are—

(a) in relation to a defence of alibi, particulars as to time and place; and

(b) in relation to that or any other defence, particulars of the witnesses who may be called to give evidence in support of the defence.

(7) Where notice of a defence to which subsection (1) above applies is given to the prosecutor, the prosecutor is entitled to an adjournment of the case.

(8) The entitlement to an adjournment under subsection (7) above may be exercised whether or not—

(a) the notice was given in accordance with subsection (5) above;

(b) the entitlement could have been exercised at an earlier diet.]

Textual Amendments

F1184 S. 149B substituted (10.12.2007) for ss. 149, 149A by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 19, 84; S.S.I. 2007/479, art. 3(1) , Sch. (subject to art. 7) (as amended by S.S.I. 2007/527)

F1185 S. 149B(2A) inserted (6.6.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 125(7), 206(1) (with s. 125(1)); S.S.I. 2011/178, art. 2, sch.

Failure of accused to appear S

150 Failure of accused to appear. S

(1) This section applies where the accused in a summary prosecution fails to appear at any diet of which he has received intimation, or to which he has been cited other than a diet which, by virtue of section 148(5) of this Act, he is not required to attend.

(2) The court may adjourn the proceedings to another diet, and order the accused to attend at such diet, and appoint intimation of the diet to be made to him.

(3) The court may grant warrant to apprehend the accused.

[F1186 (3A) The grant, under subsection (3) above, at an intermediate diet [F1187 or a diet under section 148A of this Act] of a warrant to apprehend the accused has the effect of discharging the trial diet as respects that accused.

(3B) Subsection (3A) above is subject to any order to different effect made by the court when granting the warrant.]

[F1188 (3C) An order under subsection (3B) above—

(a) for the purpose of having a trial in absence of the accused under section 150A of this Act, may be made on the motion of the prosecutor;

(b) for any other purpose, may be made on the motion of the prosecutor or of the court's own accord.]

(4) Intimation under subsection (2) above shall be sufficiently given by an officer of law, or by letter signed by the clerk of court or prosecutor and sent to the accused at his last known address by registered post or by the recorded delivery service, and the production in court of the written execution of such officer or of an acknowledgement or certificate of the delivery of the letter issued by the [F1189 postal operator] shall be sufficient evidence of such intimation having been duly given.

(5) F1190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) F1190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) F1190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) An accused who without reasonable excuse fails to attend any diet of which he has been given due notice, shall be guilty of an offence and liable on summary conviction—

(a) to a fine not exceeding level 3 on the standard scale; and

(b) to a period of imprisonment not exceeding—

(i) in the [F1191 JP court] , 60 days; or

(ii) in the sheriff court, [F1192 12] months.

(9) [F1193 A penalty under subsection (8) above shall] be imposed in addition to any other penalty which it is competent for the court to impose, notwithstanding that the total of penalties imposed may exceed the maximum penalty which it is competent to impose in respect of the original offence.

[F1194 (9A) The reference in subsection (9) above to a penalty being imposed in addition to another penalty means, in the case of sentences of imprisonment or detention—

(a) where the sentences are imposed at the same time (whether or not in relation to the same complaint), framing the sentences so that they have effect consecutively;

(b) where the sentences are imposed at different times, framing the sentence imposed later so that (if the earlier sentence has not been served) the later sentence has effect consecutive to the earlier sentence.

(9B) Subsection (9A)(b) above is subject to section 204A of this Act.

(9C) In any proceedings in relation to an offence under subsection (8) above, the fact that (as the case may be) an accused—

(a) failed to appear at a diet; or

(b) was given due notice of a diet,

shall, unless challenged by preliminary objection before his plea is recorded, be held as admitted.]

[F1195 (10) At any time before the trial in the prosecution in which the failure to appear occurred, it is competent to amend the complaint to include an additional charge of an offence under subsection (8).]

Textual Amendments

F1186 S. 150(3A)(3B) inserted (retrospectively) by Criminal Procedure (Amendment) (Scotland) Act 2002 (asp 4), s. 1(1)(2) (with s. 1(4))

F1187 Words in s. 150(3A) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 3, Sch. para. 12; S.S.I. 2002/443, art. 3

F1188 S. 150(3C) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 14(3)(a), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1189 Words in s. 150(4) substituted (26.3.2001) by S.I. 2001/1149, art. 3(1), Sch. 1 para. 104(3) (subject to art. 1(3))

F1190 S. 150(5)-(7) repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 14(3)(b), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1191 Words in s. 150(8)(b)(i) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 26(g); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F1192 Word in s. 150(8)(b)(ii) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 15(a), 84; S.S.I. 2007/479, art. 3(1), Sch. (subject to art. 6) (as amended by S.S. I. 2007/527)

F1193 Words in s. 150(9) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 15(b), 84; S.S.I. 2007/479, art. 3(1), Sch. (subject to art. 6) (as amended by S.S. I. 2007/527)

F1194 S. 150(9A)-(9C) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 15(c), 84; S.S.I. 2007/479, art. 3(1), Sch. (subject to art. 6) (as amended by S.S. I. 2007/527)

F1195 S. 150(10) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 62(2), 206(1); S.S.I. 2011/178, art. 2, sch.

[F1196 150A Proceedings in absence of accused S

(1) Where the accused does not appear at a diet (apart from a diet fixed for the first calling of the case), the court—

(a) on the motion of the prosecutor or, in relation to sentencing, of its own accord; and

(b) if satisfied as to the matters specified in subsection (2) below,

may proceed to hear and dispose of the case in the absence of the accused in like manner as if the accused were present.

(2) The matters referred in subsection (1)(b) above are—

(a) that citation of the accused has been effected or the accused has received other intimation of the diet; and

(b) that it is in the interests of justice to proceed as mentioned in subsection (1) above.

(3) In subsection (1) above, the reference to proceeding to hear and dispose of the case includes, in relation to a trial diet, proceeding with the trial.

(4) Where the court is considering whether to proceed in pursuance of subsection (1) above, it shall—

(a) if satisfied that there is a solicitor with authority to act—

(i) for the purposes of representing the accused's interests at the hearing on whether to proceed that way; and

(ii) if it proceeds that way, for the purposes of representing the accused's further interests at the diet (including, in relation to a trial diet, presenting a defence at the trial),

allow that solicitor to act for those purposes; or

(b) if there is no such solicitor, at its own hand appoint a solicitor to act for those purposes if it considers that it is in the interests of justice to do so.

(5) It is the duty of a solicitor appointed under subsection (4)(b) above to act in the best interests of the accused.

(6) In all other respects, a solicitor so appointed has, and may be made subject to, the same obligations and has, and may be given, the same authority as if engaged by the accused; and any employment of and instructions given to counsel by the solicitor shall proceed and be treated accordingly.

(7) Where the court is satisfied that—

(a) a solicitor allowed to act under subsection (4)(a) above no longer has authority to act; or

(b) a solicitor appointed under subsection (4)(b) above is no longer able to act in the best interests of the accused,

the court may relieve that solicitor and appoint another solicitor for the purposes referred to in subsection (4) above.

(8) Subsections (4)(b) and (7) above do not apply in the case of proceedings—

(a) in respect of a sexual offence to which section 288C of this Act applies;

[F1197 (aa) in respect of an offence to which section 288DC of this Act applies;]

(b) in respect of which section 288E of this Act applies; or

(c) in which an order has been made under section 288F(2) of this Act.

(9) Reference in this section to a solicitor appointed under subsection (4)(b) above includes reference to a solicitor appointed under subsection (7) above.

(10) Where the court proceeds in pursuance of subsection (1) above, it shall not in the absence of the accused pronounce a sentence of imprisonment or detention.

(11) Nothing in this section prevents—

(a) a warrant being granted at any stage of proceedings for the apprehension of the accused;

(b) a case subsequently being adjourned (in particular, with a view to having the accused present at any proceedings).]

Textual Amendments

F1196 S. 150A inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 14(4), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1197 S. 150A(8)(aa) inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 4(13); S.S.I. 2018/387, reg. 2 (with reg. 7)

Non-availability of judge S

151 Death, illness or absence of judge. S

(1) Where the court is unable to proceed owing to the death, illness or absence of the presiding judge, it shall be lawful for the clerk of court—

(a) where the diet has not been called, to convene the court and adjourn the diet;

(b) where the diet has been called but no evidence has been led, to adjourn the diet; and

(c) where the diet has been called and evidence has been led—

(i) with the agreement of the parties, to desert the diet pro loco et tempore; or

(ii) to adjourn the diet.

(2) Where, under subsection (1)(c)(i) above, a diet has been deserted pro loco et tempore, any new prosecution charging the accused with the same or any similar offence arising out of the same facts shall be brought within two months of the date on which the diet was deserted notwithstanding that any other time limit for the commencement of such prosecution has elapsed.

(3) For the purposes of subsection (2) above, a new prosecution shall be deemed to commence on the date on which a warrant to apprehend or to cite the accused is granted, if such warrant is executed without undue delay.

Trial diet S

152 Desertion of diet. S

(1) It shall be competent at the diet of trial, at any time before the first witness is sworn, for the court, on the application of the prosecutor, to desert the diet pro loco et tempore.

(2) If, at a diet of trial, the court refuses an application by the prosecutor to adjourn the trial or to desert the dietpro loco et tempore, and the prosecutor is unable or unwilling to proceed with the trial, the court shall desert the diet simpliciter.

(3) Where the court has deserted a diet simpliciter under subsection (2) above (and the court’s decision in that regard has not been reversed on appeal), it shall not be competent for the prosecutor to raise a fresh libel.

[F1198 152A Complaints triable together S

(1) Where—

(a) two or more complaints against an accused call for trial in the same court on the same day; and

(b) they each contain one or more charges to which the accused pleads not guilty,

the prosecutor may apply to the court for those charges to be tried together at that diet despite the fact that they are not all contained in the one complaint.

(2) On an application under subsection (1) above, the court is to try those charges together if it appears to the court that it is expedient to do so.

(3) For the purposes of subsections (1) and (2) above, any other charges contained in the complaints are (without prejudice to further proceedings as respects those other charges) to be disregarded.

(4) Where charges are tried together under this section, they are to be treated (including, in particular, for the purposes of and in connection with the leading of evidence, proof and verdict) as if they were contained in one complaint.

(5) But the complaints mentioned in subsection (1)(a) above are, for the purposes of further proceedings (including as to sentence), to be treated as separate complaints.]

Textual Amendments

F1198 S. 152A inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 13, 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

153 Trial in presence of accused. S

(1) [F1199 Subject to section 150A of this Act and] subsection (2) below, no part of a trial shall take place outwith the presence of the accused.

(2) If during the course of his trial an accused so misconducts himself that in the view of the court a proper trial cannot take place unless he is removed, the court may order—

(a) that he is removed from the court for so long as his conduct makes it necessary; and

(b) that the trial proceeds in his absence,

but if he is not legally represented the court shall appoint counsel or a solicitor to represent his interests during such absence.

Textual Amendments

F1199 Words in s. 153(1) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 14(5), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1200 154 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F1200 S. 154 repealed (1.8.1997) by 1997 c. 48, ss. 28(1), 62(2), Sch. 3; S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

155 Punishment of witness for contempt. S

(1) If a witness in a summary prosecution—

(a) wilfully fails to attend after being duly cited; or

(b) unlawfully refuses to be sworn; or

(c) after the oath has been administered to him refuses to answer any question which the court may allow; or

(d) prevaricates in his evidence,

he shall be deemed guilty of contempt of court and be liable to be summarily punished forthwith for such contempt by a fine not exceeding level 3 on the standard scale or by imprisonment for any period not exceeding 21 days.

(2) Where punishment is summarily imposed as mentioned in subsection (1) above, the clerk of court shall enter in the record of the proceedings the acts constituting the contempt or the statements forming the prevarication.

(3) Subsections (1) and (2) above are without prejudice to the right of the prosecutor to proceed by way of formal complaint for any such contempt where a summary punishment, as mentioned in the said subsection (1), is not imposed.

(4) Any witness who, having been duly cited in accordance with section 140 of this Act—

(a) fails without reasonable excuse, after receiving at least 48 hours’ notice, to attend for precognition by a prosecutor at the time and place mentioned in the citation served on him; or

(b) refuses when so cited to give information within his knowledge regarding any matter relative to the commission of the offence in relation to which such precognition is taken,

shall be liable to the like punishment as is provided in subsection (1) above.

[F1201 156 Apprehension of witness. S

(1) In any summary proceedings, the court may, on the application of any of the parties, issue a warrant for the apprehension of a witness if subsection (2) or (3) below applies in relation to the witness.

(2) This subsection applies if the witness, having been duly cited to any diet in the proceedings, deliberately and obstructively fails to appear at the diet.

(3) This subsection applies if the court is satisfied by evidence on oath that the witness is being deliberately obstructive and is not likely to attend to give evidence at any diet in the proceedings without being compelled to do so.

(4) For the purposes of subsection (2) above, a witness who, having been duly cited to any diet, fails to appear at the diet is to be presumed, in the absence of any evidence to the contrary, to have so failed deliberately and obstructively.

(5) An application under subsection (1) above—

(a) may be made orally or in writing;

(b) if made in writing—

(i) shall be in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form; and

(ii) may be disposed of in court or in chambers after such enquiry or hearing (if any) as the court considers appropriate.

(6) A warrant issued under this section shall be in such form as may be prescribed by Act of Adjournal or as nearly as may be in such form.

(7) A warrant issued under this section in the form mentioned in subsection (6) above shall imply warrant to officers of law—

(a) to search for and apprehend the witness in respect of whom it is issued;

(b) to bring the witness before the court;

(c) in the meantime, to detain the witness in a police station, police cell or other convenient place; and

(d) so far as necessary for the execution of the warrant, to break open shut and lockfast places.

(8) It shall not be competent in summary proceedings for a court to issue a warrant for the apprehension of a witness otherwise than in accordance with this section.

(9) Section 135(3) of this Act makes provision as to bringing before the court a person apprehended under a warrant issued under this section.

(10) In this section and section 156A, “the court” means the court in which the witness is to give evidence.]

Textual Amendments

F1201 Ss. 156-156D substituted (10.3.2008) for s. 156 by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 16, 84; S.S.I. 2008/42, art. 3, Sch.

Modifications etc. (not altering text)

C267 S. 156 applied (26.4.2004) by Crime (International Co-operation) Act 2003 (c. 32), ss. 15, 30, 31, 94, Sch. 1 para. 2, Sch. 2 para. 2; S.I. 2004/786, art. 3

C268 S. 156 modified (31.7.2017) by The Criminal Justice (European Investigation Order) Regulations 2017 (S.I. 2017/730), reg. 1(1), Sch. 6 para. 3 (with reg. 3)

C269 S. 156 applied (31.7.2017) by The Criminal Justice (European Investigation Order) Regulations 2017 (S.I. 2017/730), reg. 1(1), Sch. 5 para. 3 (with reg. 3)

[F1202 156A Orders in respect of witnesses apprehended under section 156 S

(1) Where a witness is brought before the court in pursuance of a warrant issued under section 156 of this Act, the court shall, after giving the parties and the witness an opportunity to be heard, make an order—

(a) detaining the witness until the conclusion of the diet at which the witness is to give evidence;

(b) releasing the witness on bail; or

(c) liberating the witness.

(2) The court may make an order under subsection (1)(a) or (b) above only if it is satisfied that—

(a) the order is necessary with a view to securing that the witness appears at the diet at which the witness is to give evidence; and

(b) it is appropriate in all the circumstances to make the order.

(3) Whenever the court makes an order under subsection (1) above, it shall state the reasons for the terms of the order.

(4) Subsection (1) above is without prejudice to any power of the court to—

(a) make a finding of contempt of court in respect of any failure of a witness to appear at a diet to which he has been duly cited; and

(b) dispose of the case accordingly.

(5) Where—

(a) an order under subsection (1)(a) above has been made in respect of a witness; and

(b) at, but before the conclusion of, the diet at which the witness is to give evidence, the court in which the diet is being held excuses the witness,

that court, on excusing the witness, may recall the order under subsection (1)(a) above and liberate the witness.

(6) On making an order under subsection (1)(b) above in respect of a witness, the court shall impose such conditions as it considers necessary with a view to securing that the witness appears at the diet at which he is to give evidence.

(7) However, the court may not impose as such a condition a requirement that the witness or a cautioner on his behalf deposit a sum of money in court.

(8) Section 25 of this Act shall apply in relation to an order under subsection (1)(b) above as it applies to an order granting bail, but with the following modifications—

(a) references to the accused shall be read as if they were references to the witness in respect of whom the order under subsection (1)(b) above is made;

(b) references to the order granting bail shall be read as if they were references to the order under subsection (1)(b) above;

(c) subsection (3) shall be read as if for the words from “relating” to “offence” in the third place where it occurs there were substituted “ at which the witness is to give evidence ”.]

Textual Amendments

F1202 Ss. 156-156D substituted (10.3.2008) for s. 156 by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 16, 84; S.S.I. 2008/42, art. 3, Sch.

[F1203 156B Breach of bail under section 156A(1)(b) S

(1) A witness who, having been released on bail by virtue of an order under subsection (1)(b) of section 156A of this Act, fails without reasonable excuse—

(a) to appear at any diet to which he has been cited; or

(b) to comply with any condition imposed under subsection (6) of that section,

shall be guilty of an offence and liable on summary conviction to the penalties specified in subsection (2) below.

(2) Those penalties are—

(a) a fine not exceeding level 3 on the standard scale; and

(b) imprisonment for a period—

(i) where conviction is in the JP court, not exceeding 60 days;

(ii) where conviction is in the sheriff court, not exceeding 12 months.

(3) In any proceedings in relation to an offence under subsection (1) above, the fact that (as the case may be) a person—

(a) was on bail;

(b) was subject to any particular condition of bail;

(c) failed to appear at a diet;

(d) was cited to a diet,

shall, unless challenged by preliminary objection before his plea is recorded, be held as admitted.

(4) Section 28 of this Act shall apply in respect of a witness who has been released on bail by virtue of an order under section 156A(1)(b) of this Act as it applies to an accused released on bail, but with the following modifications—

(a) references to an accused shall be read as if they were references to the witness;

(b) in subsection (2), the reference to the court to which the accused's application for bail was first made shall be read as if it were a reference to the court which made the order under section 156A(1)(b) of this Act in respect of the witness;

(c) in subsection (4)—

(i) references to the order granting bail and original order granting bail shall be read as if they were references to the order under section 156A(1)(b) of this Act and the original such order respectively;

(ii) paragraph (a) shall be read as if at the end there were inserted “ and make an order under section 156A(1)(a) or (c) of this Act in respect of the witness ”;

(iii) paragraph (c) shall be read as if for the words from “complies” to the end there were substituted “ appears at the diet at which the witness is to give evidence ”.]

Textual Amendments

F1203 Ss. 156-156D substituted (10.3.2008) for s. 156 by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 16, 84; S.S.I. 2008/42, art. 3, Sch.

Modifications etc. (not altering text)

C270 S. 156B(2)(b)(i) applied (10.12.2007) by The District Courts and Justices of the Peace (Scotland) Order 2007 (S.S.I. 2007/480), art. 4(1)(c)

[F1204 156C Review of orders under section 156A(1)(a) or (b) S

(1) Where a court has made an order under subsection (1)(a) of section 156A of this Act, the court may, on the application of the witness in respect of whom the order was made and after giving the parties and the witness an opportunity to be heard—

(a) recall the order; and

(b) make an order under subsection (1)(b) or (c) of that section in respect of the witness.

(2) Where a court has made an order under subsection (1)(b) of section 156A of this Act, the court may, after giving the parties and the witness an opportunity to be heard—

(a) on the application of the witness in respect of whom the order was made—

(i) review the conditions imposed under subsection (6) of that section at the time the order was made; and

(ii) make a new order under subsection (1)(b) of that section and impose different conditions under subsection (6) of that section;

(b) on the application of the party who made the application under section 156(1) of this Act in respect of the witness, review the order and the conditions imposed under subsection (6) of section 156A of this Act at the time the order was made, and—

(i) recall the order and make an order under subsection (1)(a) of that section in respect of the witness; or

(ii) make a new order under subsection (1)(b) of that section and impose different conditions under subsection (6) of that section.

(3) The court may not review an order by virtue of subsection (1) or (2) above unless—

(a) in the case of an application by the witness, the circumstances of the witness have changed materially; or

(b) in that or any other case, the witness or party making the application puts before the court material information which was not available to it when it made the order which is the subject of the application.

(4) An application under this section by a witness—

(a) where it relates to the first order made under section 156A(1)(a) or (b) of this Act in respect of the witness, shall not be made before the fifth day after that order is made;

(b) where it relates to any subsequent such order, shall not be made before the fifteenth day after the order is made.

(5) On receipt of an application under subsection (2)(b) above the court shall—

(a) intimate the application to the witness in respect of whom the order which is the subject of the application was made;

(b) fix a diet for hearing the application and cite the witness to attend the diet; and

(c) where it considers that the interests of justice so require, grant warrant to arrest the witness.

(6) Nothing in this section shall affect any right of a person to appeal against an order under section 156A(1).]

Textual Amendments

F1204 Ss. 156-156D substituted (10.3.2008) for s. 156 by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 16, 84; S.S.I. 2008/42, art. 3, Sch.

[F1205 156D Appeals in respect of orders under section 156A(1) S

(1) Any of the parties specified in subsection (2) below may appeal to the [F1206 Sheriff Appeal Court] against—

(a) any order made under subsection (1)(a) or (c) of section 156A of this Act;

(b) where an order is made under subsection (1)(b) of that section—

(i) the order;

(ii) any of the conditions imposed under subsection (6) of that section on the making of the order; or

(iii) both the order and any such conditions.

(2) The parties referred to in subsection (1) above are—

(a) the witness in respect of whom the order which is the subject of the appeal was made;

(b) the prosecutor; and

(c) the accused.

(3) A party making an appeal under subsection (1) above shall intimate it to the other parties specified in subsection (2) above; and, for that purpose, intimation to the Crown Agent shall be sufficient intimation to the prosecutor.

(4) An appeal under this section shall be disposed of by [F1207 Sheriff Appeal Court or any Appeal Sheriff] in court or in chambers after such enquiry and hearing of the parties as shall seem just.

(5) Where the witness in respect of whom the order which is the subject of an appeal under this section was made is under 21 years of age, section 51 of this Act shall apply to the [F1208 Sheriff Appeal Court or, as the case may be, Appeal Sheriff] when disposing of the appeal as it applies to a court when remanding or committing a person of the witness's age for trial and sentence.]

Textual Amendments

F1205 Ss. 156-156D substituted (10.3.2008) for s. 156 by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 16, 84; S.S.I. 2008/42, art. 3, Sch.

F1206 Words in s. 156D(1) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(5)(a) (with art. 4)

F1207 Words in s. 156D(4) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(5)(b) (with art. 4)

F1208 Words in s. 156D(5) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(5)(c) (with art. 4)

157 Record of proceedings. S

(1) Proceedings in a summary prosecution shall be conducted summarily viva voce and, except where otherwise provided and subject to subsection (2) below, no record need be kept of the proceedings other than the complaint, or a copy of the complaint certified as a true copy by the procurator fiscal, the plea, a note of any documentary evidence produced, and the conviction and sentence or other finding of the court.

(2) Any objection taken to the competency or relevancy of the complaint or proceedings, or to the competency or [F1209 (subject to subsection (3) below)] admissibility of evidence, shall, if either party desires it, be entered in the record of the proceedings.

[F1210 (3) An application for the purposes of subsection (1) of section 275 of this Act, together with the court’s decision on it, the reasons stated therefor and any conditions imposed and directions issued under subsection (7) of that section shall be entered in the record of the proceedings.]

Textual Amendments

F1209 Words in s. 157(2) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 8(6)(a); S.S.I. 2002/443, art. 3 (with art. 4(5))

F1210 S. 157(3) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 8(6)(b); S.S.I. 2002/443, art. 3 (with art. 4(5))

158 Interruption of summary proceedings for verdict in earlier trial. S

Where the sheriff is sitting in summary proceedings during the period in which the jury in a criminal trial in which he has presided are retired to consider their verdict, it shall be lawful, if he considers it appropriate to do so, to interrupt those proceedings—

(a) in order to receive the verdict of the jury and dispose of the cause to which it relates;

(b) to give a direction to the jury on any matter on which they may wish one from him, or to hear a request from them regarding any matter,

and the interruption shall not affect the validity of the proceedings nor cause the instance to fall in respect of any person accused in the proceedings.

159 Amendment of complaint. S

(1) It shall be competent at any time prior to the determination of the case, unless the court see just cause to the contrary, to amend the complaint or any notice of previous conviction relative thereto by deletion, alteration or addition, so as to—

(a) cure any error or defect in it;

(b) meet any objection to it; or

(c) cure any discrepancy or variance between the complaint or notice and the evidence.

(2) Nothing in this section shall authorise an amendment which changes the character of the offence charged, and, if it appears to the court that the accused may in any way be prejudiced in his defence on the merits of the case by any amendment made under this section, the court shall grant such remedy to the accused by adjournment or otherwise as appears to the court to be just.

(3) An amendment made under this section shall be sufficiently authenticated by the initials of the clerk of the court.

160 No case to answer. S

(1) Immediately after the close of the evidence for the prosecution, the accused may intimate to the court his desire to make a submission that he has no case to answer both—

(a) on an offence charged in the complaint; and

(b) on any other offence of which he could be convicted under the complaint were the offence charged the only offence so charged.

(2) If, after hearing both parties, the judge is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of which the submission has been made or of such other offence as is mentioned, in relation to that offence, in paragraph (b) of subsection (1) above, he shall acquit him of the offence charged in respect of which the submission has been made and the trial shall proceed only in respect of any other offence charged in the complaint.

(3) If, after hearing both parties, the judge is not satisfied as is mentioned in subsection (2) above, he shall reject the submission and the trial shall proceed, with the accused entitled to give evidence and call witnesses, as if such submission had not been made.

161 Defence to speak last. S

In any trial the accused or, where he is legally represented, his counsel or solicitor shall have the right to speak last.

Verdict and conviction S

162 Judges equally divided. S

In a summary prosecution in a court consisting of more than one judge, if the judges are equally divided in opinion as to the guilt of the accused, the accused shall be found not guilty of the charge or part thereof on which such division of opinion exists.

163 Conviction: miscellaneous provisions. S

(1) Where imprisonment is authorised by the sentence of a court of summary jurisdiction, an extract of the finding and sentence in the form prescribed by Act of Adjournal shall be a sufficient warrant for the apprehension and commitment of the accused, and no such extract shall be void or liable to be set aside on account of any error or defect in point of form.

(2) In any proceedings in a court of summary jurisdiction consisting of more than one judge, the signature of one judge shall be sufficient in all warrants or other proceedings prior or subsequent to conviction, and it shall not be necessary that the judge so signing shall be one of the judges trying or dealing with the case otherwise.

164 Conviction of part of charge. S

A conviction of a part or parts only of the charge or charges libelled in a complaint shall imply dismissal of the rest of the complaint.

165 “Conviction” and “sentence” not to be used for children. S

The words “conviction” and “sentence” shall not be used in relation to children dealt with summarily and any reference in any enactment, whether passed before or after the commencement of this Act, to a person convicted, a conviction or a sentence shall in the case of a child be construed as including a reference to a person found guilty of an offence, a finding of guilt or an order made upon such a finding as the case may be.

166 Previous convictions: summary proceedings S

(1) This section shall apply where the accused in a summary prosecution has been previously convicted of any offence and the prosecutor has decided to lay a previous conviction before the court.

(2) A notice in the form prescribed by Act of Adjournal or as nearly as may be in such form specifying the previous conviction shall be served on the accused with the complaint where he is cited to a diet, and where he is in custody the complaint and such a notice shall be served on him before he is asked to plead.

(3) The previous conviction shall not [F1211 , subject to section 275A(1) of this Act,] be laid before the judge until he is satisfied that the charge is proved.

(4) If a plea of guilty is tendered or if, after a plea of not guilty, the accused is convicted the prosecutor shall lay the notice referred to in subsection (2) above before the judge, and—

(a) in a case where the plea of guilty is tendered in writing the accused shall be deemed to admit any previous conviction set forth in the notice, unless he expressly denies it in the writing by which the plea is tendered;

(b) in any other case the judge or the clerk of court shall ask the accused whether he admits the previous conviction,

and if such admission is made or deemed to be made it shall be entered in the record of the proceedings; and it shall not be necessary for the prosecutor to produce extracts of any previous convictions so admitted.

(5) Where the accused does not admit any previous conviction, the prosecutor unless he withdraws the conviction shall adduce evidence in proof thereof either then or at any other diet.

(6) A copy of any notice served on the accused under this section shall be entered in the record of the proceedings.

(7) Where a person is convicted of an offence, the court may have regard to any previous conviction in respect of that person in deciding on the disposal of the case.

(8) Nothing in this section shall prevent the prosecutor—

(a) asking the accused questions tending to show that the accused has been convicted of an offence other than that with which he is charged, where he is entitled to do so under section 266 of this Act; or

(b) leading evidence of previous convictions where it is competent to do so—

(i) F1212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) under section 270 of this Act.

[F1213 (9) This section, except subsection (8) above, applies in relation to the alternative disposals mentioned in subsection (10) below as it applies in relation to previous convictions.

(10) Those alternative disposals are—

(a) a—

(i) fixed penalty under section 302(1) of this Act;

(ii) compensation offer under section 302A(1) of this Act,

that has been accepted (or deemed to have been accepted) by the accused in the two years preceding the date of an offence charged;

(b) a work order under section 303ZA(6) of this Act that has been completed in the two years preceding the date of an offence charged [F1214 ;

(c) a restoration notice given under subsection (4) of section 20A of the Nature Conservation (Scotland) Act 2004 (asp 6) in respect of which the accused has given notice of intention to comply under subsection (5) of that section in the two years preceding the date of an offence charged.]

(11) Nothing in this section shall prevent the prosecutor, following conviction of an accused of an offence—

(a) to which a fixed penalty offer made under section 302(1) of this Act related;

(b) to which a compensation offer made under section 302A(1) of this Act related; F1215 ...

(c) to which a work offer made under section 303ZA(1) of this Act related [F1216 ; or

(d) to which a restoration notice given under section 20A(4) of the Nature Conservation (Scotland) Act 2004 (asp 6) related,]

providing the judge with information about the making of the offer (including the terms of the offer) [F1217 or, as the case may be, about the giving of the notice (including the terms of the notice).]]

[F1218 (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.]

Textual Amendments

F1211 Words in s. 166(3) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 10(2); S.S.I. 2002/443, art. 3 (with art. 4(5))

F1212 S. 166(8)(b)(i) and following word repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 12(1), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1213 S. 166(9)-(11) added (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 53(3), 84; S.S.I. 2008/42, art. 3, Sch. (subject to art. 6)

F1214 S. 166(10)(c) and semi colon inserted (29.6.2011) by Wildlife and Natural Environment (Scotland) Act 2011 (asp 6), ss. 40(3)(c)(i), 43(1) (with s. 41(1)); S.S.I. 2011/279, art. 2(1)(q)

F1215 Word in s. 166(11) repealed (29.6.2011) by Wildlife and Natural Environment (Scotland) Act 2011 (asp 6), ss. 40(3)(c)(ii)(A), 43(1) (with s. 41(1)); S.S.I. 2011/279, art. 2(1)(q)

F1216 S. 166(11)(d) and word inserted (29.6.2011) by Wildlife and Natural Environment (Scotland) Act 2011 (asp 6), ss. 40(3)(c)(ii)(B), 43(1) (with s. 41(1)); S.S.I. 2011/279, art. 2(1)(q)

F1217 Words in s. 166(11) inserted (29.6.2011) by Wildlife and Natural Environment (Scotland) Act 2011 (asp 6), ss. 40(3)(c)(ii)(C), 43(1) (with s. 41(1)); S.S.I. 2011/279, art. 2(1)(q)

F1218 S. 166(12) inserted (31.12.2020) by The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 13(8) (with reg. 16)

[F1219 [F1220 166A Post-offence convictions etc. S

(1) This section applies where an accused person is convicted of an offence (“offence O”) on summary complaint.

(2) The court may, in deciding on the disposal of the case, have regard to—

(a) any conviction in respect of the accused which occurred on or after the date of offence O but before the date of conviction in respect of that offence,

(b) any of the alternative disposals in respect of the accused that are mentioned in subsection (3).

(3) Those alternative disposals are—

(a) a—

(i) fixed penalty under section 302(1) of this Act, or

(ii) compensation offer under section 302A(1) of this Act,

that has been accepted (or deemed to have been accepted) on or after the date of offence O but before the date of conviction in respect of that offence,

(b) a work order under section 303ZA(6) of this Act that has been completed on or after the date of offence O but before the date of conviction in respect of that offence.

(4) The court may have regard to any such conviction or alternative disposal only if it is—

(a) specified in a notice laid before the court by the prosecutor, and

(b) admitted by the accused or proved by the prosecutor (on evidence adduced then or at another diet).

(5) A reference in this section to a conviction which occurred on or after the date of offence O is a reference to such a conviction by a court in any part of the United Kingdom or [F1221 , where the court considers appropriate, in any] member State of the European Union.]]

Textual Amendments

F1219 S. 166A inserted (10.3.2008) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 12(2) , 84 ; S.S.I. 2008/42 , art. 3 , Sch. (subject to art. 5 )

F1220 S. 166A substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) , ss. 70(2) , 206(1) ; S.S.I. 2011/178 , art. 2 , sch.

F1221 Words in s. 166A(5) substituted (31.12.2020) by The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 13(9) (with reg. 16)

[F1222 166B Charges which disclose convictions S

(1) Nothing in section 166 of this Act prevents—

(a) the prosecutor leading evidence of previous convictions where it is competent to do so as evidence in support of a substantive charge;

(b) the prosecutor proceeding with a charge—

(i) which discloses a previous conviction; or

(ii) in support of which evidence of a previous conviction may competently be led,

on a complaint which includes a charge in relation to which the conviction is irrelevant; or

(c) the court trying a charge—

(i) which discloses a previous conviction; or

(ii) in support of which evidence of a previous conviction may competently be led,

together with a charge on another complaint in relation to which the conviction is irrelevant.

(2) But subsections (1)(b) and (c) above apply only if the charges are of offences which—

(a) relate to the same occasion; or

(b) are of a similar character and amount to (or form part of) a course of conduct.

(3) The reference in subsection (1)(c) above to trying a charge together with a charge on another complaint means doing so under section 152A of this Act.]

Textual Amendments

F1222 S. 166B inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 12(2) , 84 ; S.S.I. 2007/479 , art. 3(1) , Sch. (as amended by S.S.I. 2007/527 )

167 Forms of finding and sentence. S

(1) Every sentence imposed by a court of summary jurisdiction shall unless otherwise provided be pronounced in open court in the presence of the accused, but need not be written out or signed in his presence.

(2) The finding and sentence and any order of a court of summary jurisdiction, as regards both offences at common law and offences under any enactment, shall be entered in the record of the proceedings in the form, as nearly as may be, prescribed by Act of Adjournal.

(3) The record of the proceedings shall be sufficient warrant for all execution on a finding, sentence or order and for the clerk of court to issue extracts containing such executive clauses as may be necessary for implement thereof.

(4) When imprisonment forms part of any sentence or other judgement, warrant for the apprehension and interim detention of the accused pending his being committed to prison shall, where necessary, be implied.

(5) Where a fine imposed by a court of summary jurisdiction is paid at the bar it shall not be necessary for the court to refer to the period of imprisonment applicable to the non-payment thereof.

(6) Where several charges at common law or under any enactment are embraced in one complaint, a cumulo penalty may be imposed in respect of all or any of such charges of which the accused is convicted.

(7) [F1223 Subject to section 204A of this Act,] a court of summary jurisdiction may frame—

(a) a sentence following on conviction; or

(b) an order for committal in default of payment of any sum of money or for contempt of court,

so as to take effect on the expiry of any previous sentence [F1224 for a term] or order which, at the date of the later conviction or order, the accused is undergoing.

[F1225 (7A) Where the court imposes a sentence as mentioned in paragraph (a) of subsection (7) above for an offence committed after the coming into force of this subsection, the court may—

(a) if the person is serving or is liable to serve the punishment part of a previous sentence, frame the sentence to take effect on the day after that part of that sentence is or would be due to expire; or

(b) if the person is serving or is liable to serve the punishment parts of two or more previous sentences, frame the sentence to take effect on the day after the later or (as the case may be) latest expiring of those parts is or would be due to expire.

(7B) Where it falls to the court to sentence a person who is subject to a previous sentence in respect of which a punishment part requires to be (but has not been) specified, the court shall not sentence the person until such time as the part is either specified or no longer requires to be specified.

(7C) In subsections (7A) and (7B) above, any reference to a punishment part of a sentence shall be construed by reference to—

(a) the punishment part of the sentence as is specified in an order mentioned in section 2(2) of the 1993 Act; or

(b) any part of the sentence which has effect, by virtue of section 10 of the 1993 Act or the schedule to the Convention Rights (Compliance)(Scotland) Act 2001 (asp 7), as if it were the punishment part so specified,

and “ the 1993 Act ” means the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9). ]

(8) It shall be competent at any time before imprisonment has followed on a sentence for the court to alter or modify it; but no higher sentence than that originally pronounced shall be competent, and—

(a) the signature of the judge or clerk of court to any sentence shall be sufficient also to authenticate the findings on which such sentence proceeds; and

(b) the power conferred by this subsection to alter or modify a sentence may be exercised without requiring the attendance of the accused.

Textual Amendments

F1223 Words in s. 167(7) inserted (30.9.1998) by 1998 c. 37 , s. 119 , Sch. 8 para. 122 ; S.I. 1998/2327 , art. 2(1)(y)(2)(kk) (subject to arts. 5-8 )

F1224 Words in s. 167(7)(b) inserted (1.12.2003) by Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 26(2)(a) , 89 ; S.S.I. 2003/475 , art. 2 , Sch.

F1225 S. 167(7A)-(7C) inserted (1.12.2003) by Criminal Justice (Scotland) Act 2003 (asp 7) , ss. 26(2)(b) , 89 ; S.S.I. 2003/475 , art. 2 , Sch.

168 Caution. S

(1) This section applies with regard to the finding, forfeiture, and recovery of caution in any proceedings under this Part of this Act.

(2) Caution may be found by consignation of the amount with the clerk of court, or by bond of caution signed by the cautioner.

(3) Where caution becomes liable to forfeiture, forfeiture may be granted by the court on the motion of the prosecutor, and, where necessary, warrant granted for the recovery of the caution.

(4) Where a cautioner fails to pay the amount due under his bond within six days after he has received a charge to that effect, the court may—

(a) order him to be imprisoned for the maximum period applicable in pursuance of section 219 of this Act to that amount or until payment is made; or

(b) if it considers it expedient, on the application of the cautioner grant time for payment; or

(c) instead of ordering imprisonment, order recovery by civil diligence in accordance with section 221 of this Act.

169 Detention in precincts of court. S

F1226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1226 S. 169 repealed (13.12.2010 in respect of offences committed on or after this date) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) , ss. 16(2) , 206(1) ; S.S.I. 2010/413 , art. 2 , Sch.

Miscellaneous S

170 Damages in respect of summary proceedings. S

(1) No judge, clerk of court or prosecutor in the public interest shall be found liable by any court in damages for or in respect of any proceedings taken, act done, or judgment, decree or sentence pronounced in any summary proceedings under this Act, unless—

(a) the person suing has suffered imprisonment in consequence thereof; and

(b) such proceedings, act, judgment, decree or sentence has been quashed; and

(c) the person suing specifically avers and proves that such proceeding, act, judgment, decree or sentence was taken, done or pronounced maliciously and without probable cause.

(2) No such liability as aforesaid shall be incurred or found where such judge, clerk of court or prosecutor establishes that the person suing was guilty of the offence in respect whereof he had been convicted, or on account of which he had been apprehended or had otherwise suffered, and that he had undergone no greater punishment than was assigned by law to such offence.

(3) No action to enforce such liability as aforesaid shall lie unless it is commenced within two months after the proceeding, act, judgment, decree or sentence founded on, or in the case where the Act under which the action is brought fixes a shorter period, within that shorter period.

(4) In this section “judge” shall not include “sheriff”, and the provisions of this section shall be without prejudice to the privileges and immunities possessed by sheriffs.

171 Recovery of penalties. S

(1) All penalties, for the recovery of which no special provision has been made by any enactment may be recovered by the public prosecutor in any court having jurisdiction.

(2) Where a court has power to take cognisance of an offence the penalty attached to which is not defined, the punishment therefore shall be regulated by that applicable to common law offences in that court.

172 Forms of procedure. S

(1) The forms of procedure for the purposes of summary proceedings under this Act and appeals therefrom shall be in such forms as are prescribed by Act of Adjournal or as nearly as may be in such forms.

(2) All warrants (other than warrants of apprehension or search), orders of court, and sentences may be signed either by the judge or by the clerk of court, and execution upon any warrant, order of court, or sentence may proceed either upon such warrant, order of court, or sentence itself or upon an extract thereof issued and signed by the clerk of court.

(3) Where, preliminary to any procedure, a statement on oath is required, the statement may be given before any judge, whether the subsequent procedure is in his court or another court.

PART X S Appeals from Summary Proceedings

Modifications etc. (not altering text)

C271 Pt. X (ss. 173-194) excluded (19.2.2001) by 2000 c. 11, ss. 7(7), 8(1)(f)(ii); S.I. 2001/421, art. 2

C272 Pt. 10 extended (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 12(6)(e)

C273 Pt. 10 extended (15.12.2011) by Terrorism Prevention and Investigation Measures Act 2011 (c. 23), s. 31(2), Sch. 3 para. 4(4)(e) (with Sch. 8)

C274 Pt. 10 extended (12.2.2015) by Counter Terrorism and Security Act 2015 (c. 6), s. 52(5), Sch. 4 para. 4(4)(e)

C275 Pt. 10 extended (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 9 para. 4(5)(e) (with s. 97); S.I. 2023/1272, reg. 2(b)

General S

173 [F1227 Quorum of Sheriff Appeal Court in relation to appeals.] S

(1) For the purpose of hearing and determining any appeal under this Part of this Act, or any proceeding connected therewith, three of the [F1228 Appeal Sheriffs] shall be a quorum of the [F1229 Sheriff Appeal Court], and the determination of any question under this Part of this Act by the court shall be according to the votes of the majority of the members of the court sitting, including the presiding [F1230 Appeal Sheriff], and each [F1230 Appeal Sheriff] so sitting shall be entitled to pronounce a separate opinion.

(2) For the purpose of hearing and determining appeals under section [F1231 175(2)(b), (c) or (cza)] F1232 ... of this Act, or any proceeding connected therewith, two of the [F1233 Appeal Sheriffs] shall be a quorum of the [F1234 Sheriff Appeal Court], and each [F1235 Appeal Sheriff] shall be entitled to pronounce a separate opinion; but where the two [F1233 Appeal Sheriffs] are unable to reach agreement on the disposal of the appeal, or where they consider it appropriate, the appeal shall be heard and determined in accordance with subsection (1) above.

Textual Amendments

F1227 S. 173 title substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 2(2); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1228 Words in s. 173(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 2(3)(c); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1229 Words in s. 173(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 2(3)(a); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1230 Words in s. 173(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 2(3)(b); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1231 Words in s. 173(2) substituted (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 11; S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F1232 Words in s. 173(2) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 20 (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1233 Words in s. 173(2) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 2(3)(c); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1234 Words in s. 173(2) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 2(3)(a); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1235 Words in s. 173(2) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 2(3)(b); S.S.I. 2015/247, art. 2, sch. (with art. 6)

174 Appeals relating to preliminary pleas. S

(1) Without prejudice to any right of appeal under section 175(1) to (6) or 191 of this Act, a party may, F1236 ... in accordance with such procedure as may be prescribed by Act of Adjournal, appeal to the [F1237 Sheriff Appeal Court] against a decision of the court of first instance (other than a decision not to grant leave under [F1238 subsection (1A)(b)]) which relates to such objection or denial as is mentioned in section 144(4) of this Act; but such appeal must be taken not later than [F1239 seven] days after such decision.

[F1240 (1A) An appeal under subsection (1) may be taken—

(a) in the case of a decision to dismiss the complaint or any part of it, by the prosecutor without the leave of the court,

(b) in any other case, only with the leave of the court of first instance (granted on the motion of a party or ex proprio motu).]

(2) Where an appeal is taken under subsection (1) above, the [F1241 Sheriff Appeal Court] may postpone the trial diet (if one has been fixed) for such period as appears to it to be appropriate and may, if it thinks fit, direct that such period (or some part of it) shall not count towards any time limit applying in respect of the case.

[F1242 (2A) Subsection (3) applies where—

(a) the court grants leave to appeal under subsection (1), or

(b) the prosecutor—

(i) indicates an intention to appeal under subsection (1), and

(ii) by virtue of subsection (1A)(a), does not require the leave of the court.]

(3) [F1243 Where this subsection applies, the court of first instance] shall not proceed to trial at once under subsection (2) of section 146 of this Act; and subsection (3) of that section shall be construed as requiring sufficient time to be allowed for the appeal to be taken.

(4) In disposing of an appeal under subsection (1) above the [F1244 Sheriff Appeal Court] may affirm the decision of the court of first instance or may remit the case to it with such directions in the matter as it thinks fit; and where the court of first instance had dismissed the complaint, or any part of it, may reverse that decision and direct that the court of first instance fix a trial diet (if it has not already fixed one as regards so much of the complaint as it has not dismissed.)

Textual Amendments

F1236 Words in s. 174(1) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 87(2)(a), 117(2); S.S.I. 2016/426, art. 2, sch.

F1237 Words in s. 174(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 3; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1238 Words in s. 174(1) substituted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 87(2)(b), 117(2); S.S.I. 2016/426, art. 2, sch.

F1239 Word in s. 174(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 72(3), 206(1); S.S.I. 2011/178, art. 2, sch.

F1240 S. 174(1A) inserted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 87(3), 117(2); S.S.I. 2016/426, art. 2, sch.

F1241 Words in s. 174(2) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 3; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1242 S. 174(2A) inserted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 87(4), 117(2); S.S.I. 2016/426, art. 2, sch.

F1243 Words in s. 174(3) substituted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 87(5), 117(2); S.S.I. 2016/426, art. 2, sch.

F1244 Words in s. 174(4) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 3; S.S.I. 2015/247, art. 2, sch. (with art. 6)

175 Right of appeal. S

(1) This section is without prejudice to any right of appeal under section 191 of this Act.

(2) Any person convicted, or found to have committed an offence, in summary proceedings may, with leave granted in accordance with section 180 or, as the case may be, 187 of this Act, appeal under this section to the [F1245 Sheriff Appeal Court]—

(a) against such conviction, or finding;

(b) against the sentence passed on such conviction;

(c) against his absolute discharge or admonition or any [F1246 drug treatment and testing order] or any order deferring sentence; F1247 ...

[F1248 (cza) against any disposal under section 227ZC(7)(a) to (c) or (e) or (8)(a) of this Act;]

[F1249 (ca) against any decision to remit made under section 49(1)(a) or (7)(b) of this Act;]

[F1250 (cb) F1251 ... or]

(d) against

[F1252 (i)] both such conviction and such sentence or disposal or order.

F1253 (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1253 (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The prosecutor in summary proceedings may appeal under this section to the [F1254 Sheriff Appeal Court] on a point of law—

(a) against an acquittal in such proceedings; or

(b) against a sentence passed on conviction in such proceedings.

[F1255 (4) The prosecutor in summary proceedings, in any class of case specified by order made by the Secretary of State, may, in accordance with subsection (4A) below, appeal to the [F1256 Sheriff Appeal Court] against any of the following disposals, namely—

(a) a sentence passed on conviction;

(b) a decision under section 209(1)(b) of this Act not to make a supervised release order;

(c) a decision under section 234A(2) of this Act not to make a non-harassment order;

[F1257 (ca) a decision under section 92 of the Proceeds of Crime Act 2002 not to make a confiscation order;.]

[F1258 (cb) a decision under section 22A of the Serious Crime Act 2007 not to make a serious crime prevention order;]

[F1259 (cb) a decision under section 36(2) of the Regulatory Reform (Scotland) Act 2014 not to make a publicity order;

(cc) a decision under section 41(2) of that Act not to make a remediation order;]

[F1260 (cd) a decision under section 97B(2) of the Proceeds of Crime Act 2002 to make or not to make a compliance order;]

[F1261 (ce) a decision under section 30(2) of the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 not to make a remedial order,

(cf) a decision under section 30(2) of that Act not to make a publicity order,]

F1262 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F1263 (dd) a drug treatment and testing order;]

F1262 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) a decision to remit to the Principal Reporter made under section 49(1)(a) or (7)(b) of this Act;

(g) an order deferring sentence;

(h) an admonition; or

(i) an absolute discharge.

(4A) An appeal under subsection (4) above may be made—

(a) on a point of law;

(b) where it appears to the Lord Advocate, in relation to an appeal under—

(i) paragraph (a), (h) or (i) of that subsection, that the disposal was unduly lenient;

(ii) paragraph (b) [F1264 , (c) [F1265 [F1266 , (ca) or (cb)], (cb) [F1267 , (cc) [F1268 , (cd), (ce) or (cf)]]]] of that subsection, that the decision not to make the order in question was inappropriate;

(iii) paragraph [F1269 (cd) or] [F1270 (dd)] of that subsection, that the making of the order concerned was unduly lenient or was on unduly lenient terms;

(iv) under paragraph (f) of that subsection, that the decision to remit was inappropriate;

(v) under paragraph (g) of that subsection, that the deferment of sentence was inappropriate or was on unduly lenient conditions.]

[F1271 (4B) For the purposes of subsection (4A)(b)(i) above in its application to a confiscation order by virtue of section 92(11) of the Proceeds of Crime Act 2002, the reference to the disposal being unduly lenient is a reference to the amount required to be paid by the order being unduly low.]

[F1272 (4C) In deciding whether to appeal under subsection (4) in any case, the prosecutor must have regard to any sentencing guidelines which are applicable in relation to the case.]

[F1273 (5) By an appeal under subsection (2) above, an appellant may bring under review of the [F1274 Sheriff Appeal Court] any alleged miscarriage of justice which may include such a miscarriage based, subject to subsections (5A) to (5D) below, on the existence and significance of evidence which was not heard at the original proceedings.

(5A) Evidence which was not heard at the original proceedings may found an appeal only where there is a reasonable explanation of why it was not so heard.

(5B) Where the explanation referred to in subsection (5A) above or, as the case may be, (5C) below is that the evidence was not admissible at the time of the original proceedings, but is admissible at the time of the appeal, the court may admit that evidence if it appears to the court that it would be in the interests of justice to do so.

(5C) Without prejudice to subsection (5A) above, where evidence such as is mentioned in F1275 ... subsection (5) above is evidence—

(a) which is—

(i) from a person; or

(ii) of a statement (within the meaning of section 259(1) of this Act) by a person,

who gave evidence at the original proceedings; and

(b) which is different from, or additional to, the evidence so given,

it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.

(5D) For the purposes of subsection (5C) above, “independent evidence” means evidence which—

(a) was not heard at the original proceedings;

(b) is from a source independent of the person referred to in subsection (5C) above; and

(c) is accepted by the court as being credible and reliable.

(5E) By an appeal against acquittal under subsection (3) above a prosecutor may bring under review of the [F1276 Sheriff Appeal Court] any alleged miscarriage of justice.]

(6) The power of the Secretary of State to make an order under subsection (4) above shall be exercisable by statutory instrument; and any order so made shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7) Where a person desires to appeal under subsection (2)(a) or (d) or (3) above, he shall pursue such appeal in accordance with sections 176 to 179, 181 to 185, 188, 190 and 192(1) and (2) of this Act.

(8) A person who has appealed [F1277 against both conviction and sentence may abandon the appeal in so far as it is against conviction and may proceed with it against sentence alone,] subject to such procedure as may be prescribed by Act of Adjournal.

(9) Where a convicted person or as the case may be a person found to have committed an offence desires to appeal under subsection (2)(b) or (c) F1278 ... above, or the prosecutor desires so to appeal by virtue of subsection (4) above, he shall pursue such appeal in accordance with sections 186, 189(1) to (6), 190 and 192(1) and (2) of this Act; but nothing in this section shall prejudice any right to proceed by bill of suspension, or as the case may be advocation, against an alleged fundamental irregularity relating to the imposition of sentence.

(10) Where any statute provides for an appeal from summary proceedings to be taken under any public general or local enactment, such appeal shall be taken under this Part of this Act.

Textual Amendments

F1245 Words in s. 175(2) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 4; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1246 Words in s. 175(2)(c) substituted (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 12(a)(i); S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F1247 Word in s. 175(2)(c) repealed (10.1.2005) by Protection of Children (Scotland) Act 2003 (asp 5), ss. 16(7)(a), 22(2); S.S.I. 2004/522, art. 2 (as amended by S.S.I. 2004/556, art. 2)

F1248 S. 175(2)(cza) inserted (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 12(a)(ii); S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F1249 S. 175(2)(ca) inserted (1.8.1997) by 1997 c. 48, s. 23(c); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F1250 S. 175(2)(cb) inserted (10.1.2005) by Protection of Children (Scotland) Act 2003 (asp 5), ss. 16(7)(b), 22(2); S.S.I. 2004/522, art. 2 (as amended by S.S.I. 2004/556, art. 2)

F1251 S. 175(2)(cb) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 21(a)(i) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1252 S. 175(2): words in para. (d) become s. 175(2)(d)(i) (10.1.2005) by virtue of Protection of Children (Scotland) Act 2003 (asp 5) {ss. 16(7)(c)}, 22(2); S.S.I. 2004/522, art. 2 (as amended by S.S.I. 2004/556, art. 2)

F1253 S. 175(2)(d)(ii)(iii) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 21(a)(ii) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1254 Words in s. 175(3) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 4; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1255 S. 175(4)(4A) substituted (1.8.1997) for s. 175(4) by 1997 c. 48, s. 21(2); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F1256 Words in s. 175(4) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 4; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1257 S. 175(4)(ca) inserted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 115(6), 458; S.S.I. 2003/210, art. 2(1)(a) (subject to arts. 3-7)

F1258 S. 175(4)(cb) inserted (1.3.2016) by Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 15(2); S.I. 2016/148, reg. 3(g)

F1259 S. 175(4)(cb)(cc) inserted (30.6.2014) by Regulatory Reform (Scotland) Act 2014 (asp 3), ss. 44(3)(a), 61(2); S.S.I. 2014/160, art. 2(1)(2), sch.

F1260 S. 175(4)(cd) inserted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 17(3)(a), 88(2)(a); S.S.I. 2016/11, reg. 2(b)

F1261 S. 175(4)(ce)(cf) inserted (1.10.2017) by Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 (asp 14), ss. 31(3)(a), 36(2); S.S.I. 2017/294, reg. 2, sch.

F1262 S. 175(4)(d)(e) repealed (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 12(b); S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F1263 S. 175(4)(dd) inserted (30.9.1998) by 1998 c. 37, s. 94(2), Sch. 6 Pt. II para. 7(3); S.I. 1998/2327, art. 2(1)(s) (subject to arts. 5-8)

F1264 Words in s. 175(4A)(b)(ii) substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 115(7), 458; S.S.I. 2003/210, art. 2(1)(a) (subject to arts. 3-7)

F1265 Words in s. 175(4A)(b)(ii) substituted (30.6.2014) by Regulatory Reform (Scotland) Act 2014 (asp 3), ss. 44(3)(b), 61(2); S.S.I. 2014/160, art. 2(1)(2), sch.

F1266 Words in s. 175(4A)(b)(ii) substituted (1.3.2016) by Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 15(3); S.I. 2016/148, reg. 3(g)

F1267 Words in s. 175(4A)(b)(ii) substituted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 17(3)(b)(i), 88(2)(a); S.S.I. 2016/11, reg. 2(b)

F1268 Words in s. 175(4A)(b)(ii) substituted (1.10.2017) by Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 (asp 14), ss. 31(3)(b), 36(2); S.S.I. 2017/294, reg. 2, sch.

F1269 Words in s. 175(4A)(b)(iii) inserted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 17(3)(b)(ii), 88(2)(a); S.S.I. 2016/11, reg. 2(b)

F1270 Words in s. 175(4A)(b)(iii) substituted (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 12(c); S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F1271 S. 175(4B) inserted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 115(8), 458; S.S.I. 2003/210, art. 2(1)(a) (subject to arts. 3-7)

F1272 S. 175(4C) inserted (19.10.2015) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 6(8), 206(1); S.S.I. 2015/336, art. 2(a)

F1273 S. 175(5)-(5E) substituted (1.8.1997) for s. 175(5) by 1997 c. 48, s. 17(2); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F1274 Words in s. 175(5) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 4; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1275 Words in s. 175(5C) repealed (30.9.1998) by 1998 c. 37, ss. 119, 120(2), Sch. 8 para. 123, Sch. 10; S.I. 1998/2327, art. 2(1)(y)(aa)(2)(kk)(3)(w) (subject to arts. 5-8)

F1276 Words in s. 175(5E) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 4; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1277 Words in s. 175(8) substituted (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 21(b) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1278 Words in s. 175(9) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 21(c) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

Modifications etc. (not altering text)

C276 S. 175(2)(b) amended (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 100(9), 458; S.S.I. 2003/210, art. 2(1)(a) (subject to arts. 3-7)

C277 S. 175(3)(b) amended (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 100(9), 458; S.S.I. 2003/210, art. 2(1)(a) (subject to arts. 3-7)

[F1279 175A Power to refer points of law for the opinion of the High Court S

(1) In an appeal under this Part, the Sheriff Appeal Court may refer a point of law to the High Court for its opinion if it considers that the point is a complex or novel one.

(2) The Sheriff Appeal Court may make a reference under subsection (1)—

(a) on the application of a party to the appeal proceedings, or

(b) on its own initiative.

(3) On giving its opinion on a reference under subsection (1), the High Court may also give a direction as to further procedure in, or disposal of, the appeal.]

Textual Amendments

F1279 S. 175A inserted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 120, 138(2); S.S.I. 2015/247, art. 2, sch.

Stated case S

176 Stated case: manner and time of appeal. S

(1) An appeal under section 175(2)(a) or (d) or (3) of this Act shall be by application for a stated case, which application shall—

(a) be made within one week of the final determination of the proceedings;

(b) contain a full statement of all the matters which the appellant desires to bring under review and, where the appeal is also against sentence or disposal or order, the ground of appeal against that sentence or disposal or order; and

(c) be signed by the appellant or his solicitor and lodged with the clerk of court,

and a copy of the application shall, within the period mentioned in paragraph (a) above, be sent by the appellant to the respondent or the respondent’s solicitor.

(2) The clerk of court shall enter in the record of the proceedings the date when an application under subsection (1) above was lodged.

(3) The appellant may, at any time within the period of three weeks mentioned in subsection (1) of section 179 of this Act, or within any further period afforded him by virtue of section 181(1) of this Act, amend any matter stated in his application or add a new matter; and he shall intimate any such amendment, or addition, to the respondent or the respondent’s solicitor.

(4) Where such an application has been made by the person convicted, and the judge by whom he was convicted dies before signing the case or is precluded by illness or other cause from doing so, it shall be competent for the convicted person to present a bill of suspension to the [F1280 Sheriff Appeal Court] and to bring under the review of that court any matter which might have been brought under review by stated case.

(5) The record of the procedure in the inferior court in an appeal mentioned in subsection (1) above shall be as nearly as may be in the form prescribed by Act of Adjournal.

Textual Amendments

F1280 Words in s. 176(4) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 5; S.S.I. 2015/247, art. 2, sch. (with art. 6)

Modifications etc. (not altering text)

C278 S. 176(1) modified (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 100(8), 458; S.S.I. 2003/210, art. 2(1)(a) (subject to transitional provisions and savings in arts. 3-7)

[F1281 176A Application of section 176 in relation to certain appeals S

(1) Section 176 applies in relation to an appeal under section 175(2)(a) by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16) with the following modifications.

(2) In subsection (1)(a), for the words “one week of the final determination of the proceedings” substitute “ one week of the date on which the appellant is acquitted of an offence mentioned in section 11(2) of the Double Jeopardy (Scotland) Act 2011 (asp 16) ”.

(3) In subsection (2), the reference to the proceedings is to be construed as a reference to the proceedings resulting in the appellant's acquittal as mentioned in section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16).

(4) In subsection (5), the reference to the inferior court is to be construed as a reference to the court which acquitted the appellant of an offence under section 11(2) of the Double Jeopardy (Scotland) Act 2011 (asp 16).]

Textual Amendments

F1281 S. 176A inserted (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), s. 17(3), sch. para. 13; S.S.I. 2011/365, art. 3

177 Procedure where appellant in custody. S

(1) If an appellant making an application under section 176 of this Act is in custody, the court of first instance may—

(a) grant bail;

(b) grant a sist of execution;

(c) make any other interim order.

(2) An application for bail shall be disposed of by the court [F1282 before the end of the day (not being a Saturday or Sunday, or a court holiday prescribed for the court which is to determine the question of bail, unless that court is sitting on that day for the disposal of criminal business) after the day on which the application is] made.

(3) If bail is refused or the appellant is dissatisfied with the conditions imposed, he may, within 24 hours after the judgment of the court, appeal against it by a note of appeal written on the complaint and signed by himself or his solicitor, and the complaint and proceedings shall thereupon be transmitted to the [F1283 Clerk of the Sheriff Appeal Court], and the [F1284 Sheriff Appeal Court] or any [F1285 Appeal Sheriff] thereof, either in court or in chambers, shall F1286 . . . have power to review the decision of the inferior court and to grant bail on such conditions as the Court or [F1285 Appeal Sheriff] may think fit, or to refuse bail.

(4) No clerks’ fees, court fees or other fees or expenses shall be exigible from or awarded against an appellant in custody in respect of an appeal to the [F1287 Sheriff Appeal Court] against the conditions imposed or on account of refusal of bail by a court of summary jurisdiction.

(5) If an appellant who has been granted bail does not thereafter proceed with his appeal, the inferior court shall have power to grant warrant to apprehend and imprison him for such period of his sentence as at the date of his bail remained unexpired and, subject to subsection (6) below, such period shall run from the date of his imprisonment under the warrant or, on the application of the appellant, such earlier date as the court thinks fit, not being a date later than the date of expiry of any term or terms of imprisonment imposed subsequently to the conviction appealed against.

(6) Where an appellant who has been granted bail does not thereafter proceed with his appeal, the court from which the appeal was taken shall have power, where at the time of the abandonment of the appeal the person is in custody or serving a term or terms of imprisonment imposed subsequently to the conviction appealed against, to order that the sentence or, as the case may be, the unexpired portion of that sentence relating to that conviction should run from such date as the court may think fit, not being a date later than the date on which any term or terms of imprisonment subsequently imposed expired.

(7) The court shall not make an order under subsection (6) above to the effect that the sentence or, as the case may be, unexpired portion of the sentence shall run other than concurrently with the subsequently imposed term of imprisonment without first notifying the appellant of its intention to do so and considering any representations made by him or on his behalf.

[F1288 (8) Subsections (6) and (7) of section 112 of this Act (bail pending determination of appeals under [F1289 section 288AA of this Act or] paragraph 13(a) of Schedule 6 to the Scotland Act 1998) shall apply to appeals arising in summary proceedings as they do to appeals arising in solemn proceedings.]

Textual Amendments

F1282 Words in s. 177(2) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 6(3), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1283 Words in s. 177(3) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 6(2)(a); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1284 Words in s. 177(3) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 6(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1285 Words in s. 177(3) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 6(2)(b); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1286 Words in s. 177(3) repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 18(1); S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S. I. 2007/527)

F1287 Words in s. 177(4) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 6(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1288 S. 177(8) inserted (6.5.1999) by S.I. 1999/1042, arts. 1(2)(a), 3, Sch. 1 Pt. I para. 13(7)

F1289 Words in s. 177(8) inserted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 36(10), 44(5); S.I. 2013/6, art. 2(c)

Modifications etc. (not altering text)

C279 S. 177(2) applied (1.9.2001) by 2001 c. 17, s. 10(6); S.I. 2001/2161, art. 2 (subject to art. 3) (as amended by S.I. 2001/2304, art. 2)

178 Stated case: preparation of draft. S

(1) Within three weeks of the final determination of proceedings in respect of which an application for a stated case is made under section 176 of this Act—

(a) where the appeal is taken from the [F1290 JP court] and the trial was presided over by a justice of the peace or justices of the peace, the Clerk of Court; or

(b) in any other case the judge who presided at the trial,

shall prepare a draft stated case, and the clerk of the court concerned shall forthwith issue the draft to the appellant or his solicitor and a duplicate thereof to the respondent or his solicitor.

[F1291 (1A) Where an application for a stated case under section 176 of this Act relates to an appeal by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16)—

(a) the reference in subsection (1) to the final determination of proceedings is to be construed as a reference to the date on which the appellant is acquitted of an offence mentioned in section 11(2) of that Act; and

(b) the reference in subsection (1)(b) to the judge who presided at the trial is to be construed as a reference to the judge who presided at the trial resulting in the conviction in respect of which the application for a stated case is made.]

(2) A stated case shall be, as nearly as may be, in the form prescribed by Act of Adjournal, and shall set forth the particulars of any matters competent for review which the appellant desires to bring under the review of the [F1292 Sheriff Appeal Court], and of the facts, if any, proved in the case, and any point of law decided, and the grounds of the decision.

Textual Amendments

F1290 Words in s. 178(1)(a) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 26(h); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F1291 S. 178(1A) inserted (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), s. 17(3), sch. para. 14; S.S.I. 2011/365, art. 3

F1292 Words in s. 178(2) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 7; S.S.I. 2015/247, art. 2, sch. (with art. 6)

179 Stated case: adjustment and signature. S

(1) Subject to section 181(1) of this Act, within three weeks of the issue of the draft stated case under section 178 of this Act, each party shall cause to be transmitted to the court and to the other parties or their solicitors a note of any adjustments he proposes be made to the draft case or shall intimate that he has no such proposal.

(2) The adjustments mentioned in subsection (1) above shall relate to evidence heard or purported to have been heard at the trial and not to such F1293 . . . evidence as is mentioned in section 175(5) of this Act.

(3) Subject to section 181(1) of this Act, if the period mentioned in subsection (1) above has expired and the appellant has not lodged adjustments and has failed to intimate that he has no adjustments to propose, he shall be deemed to have abandoned his appeal; and subsection (5) of section 177 of this Act shall apply accordingly.

(4) If adjustments are proposed under subsection (1) above or if the judge desires to make any alterations to the draft case there shall, within one week of the expiry of the period mentioned in that subsection or as the case may be of any further period afforded under section 181(1) of this Act, be a hearing (unless the appellant has, or has been deemed to have, abandoned his appeal) for the purpose of considering such adjustments or alterations.

(5) Where a party neither attends nor secures that he is represented at a hearing under subsection (4) above, the hearing shall nevertheless proceed.

(6) Where at a hearing under subsection (4) above—

(a) any adjustment proposed under subsection (1) above by a party (and not withdrawn) is rejected by the judge; or

(b) any alteration proposed by the judge is not accepted by all the parties,

that fact shall be recorded in the minute of the proceedings of the hearing.

(7) Within two weeks of the date of the hearing under subsection (4) above or, where there is no hearing, within two weeks of the expiry of the period mentioned in subsection (1) above, the judge shall (unless the appellant has been deemed to have abandoned the appeal) state and sign the case and shall append to the case—

(a) any adjustment, proposed under subsection (1) above, which is rejected by him, a note of any evidence rejected by him which is alleged to support that adjustment and the reasons for his rejection of that adjustment and evidence; and

(b) a note of the evidence upon which he bases any finding of fact challenged, on the basis that it is unsupported by the evidence, by a party at the hearing under subsection (4) above.

(8) As soon as the case is signed under subsection (7) above the clerk of court—

(a) shall send the case to the appellant or his solicitor and a duplicate thereof to the respondent or his solicitor; and

[F1294 (b) shall transmit a certified copy of the complaint, the minute of proceedings and any other relevant documents to the [F1295 Clerk of the Sheriff Appeal Court].]

(9) Subject to section 181(1) of this Act, within one week of receiving the case the appellant or his solicitor, as the case may be, shall cause it to be lodged with the [F1296 Clerk of the Sheriff Appeal Court].

(10) Subject to section 181(1) of this Act, if the appellant or his solicitor fails to comply with subsection (9) above the appellant shall be deemed to have abandoned the appeal; and subsection (5) of section 177 of this Act shall apply accordingly.

[F1297 (11) In relation to a draft stated case under section 178 of this Act relating to an appeal by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16)—

(a) the reference in subsection (1) to the court is to be construed as a reference to the court by which the appellant was convicted; and

(b) the references in this section to the judge are to be construed as references to the judge who presided at the trial resulting in that conviction.]

Textual Amendments

F1293 Word in s. 179(2) repealed (1.8.1997) by 1997 c. 48, s. 62(1)(2), Sch. 1 para. 21(20), Sch. 3; S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F1294 S. 179(8)(b) substituted (8.4.2009) by Act of Adjournal (Amendment of the Criminal Procedure (Scotland) Act 1995) (Appeals by Stated Case) 2009 (S.S.I. 2009/108), {rule 2}

F1295 Words in s. 179(8)(b) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 8; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1296 Words in s. 179(9) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 8; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1297 S. 179(11) inserted (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), s. 17(3), sch. para. 15; S.S.I. 2011/365, art. 3

Modifications etc. (not altering text)

C280 S. 179(8) excluded by 2006 asp 10, s. 96A(5) (as inserted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 9(6) (with art. 4))

180 Leave to appeal against conviction etc. S

(1) The decision whether to grant leave to appeal for the purposes of section 175(2)(a) or (d) of this Act shall be made by [F1298 an Appeal Sheriff] of the [F1299 Sheriff Appeal Court] who shall—

(a) if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and

(b) in any other case—

(i) refuse leave to appeal and give reasons in writing for the refusal; and

(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.

(2) The documents referred to in subsection (1) above are—

(a) the stated case lodged under subsection (9) of section 179 of this Act; and

(b) the documents transmitted to the [F1300 Clerk of the Sheriff Appeal Court] under subsection (8)(b) of that section.

(3) A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (4) below [F1301 (and if that period is extended under subsection (4A) below before the period being extended expires, until the expiry of the period as so extended)] without an application to the [F1302 Sheriff Appeal Court] for leave to appeal having been lodged by the appellant under [F1303 subsection (4) below].

(4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (10) below, apply to the [F1304 Sheriff Appeal Court] for leave to appeal.

[F1305 (4A) The [F1304 Sheriff Appeal Court] may, on cause shown, extend the period of 14 days mentioned in subsection (4) above, or that period as extended under this subsection, whether or not the period to be extended has expired (and if that period of 14 days has expired, whether or not it expired before section 25(1) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) came into force).]

(5) In deciding an application under subsection (4) above the [F1306 Sheriff Appeal Court] shall—

(a) if, after considering the documents mentioned in subsection (2) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and

(b) in any other case—

(i) refuse leave to appeal and give reasons in writing for the refusal; and

(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.

(6) The question whether to grant leave to appeal under subsection (1) or (5) above shall be considered and determined in chambers without the parties being present.

(7) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the stated case) on the basis of which leave to appeal is granted.

(8) Where the arguable grounds of appeal are specified by virtue of subsection (7) above it shall not, except by leave of the [F1307 Sheriff Appeal Court] on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the stated case but not so specified.

(9) Any application by the appellant for the leave of the [F1308 Sheriff Appeal Court] under subsection (8) above—

(a) shall be made [F1309 within 14 days of the date of intimation under subsection (10) below]; and

(b) shall, [F1310 within 14 days of] that date, be intimated by the appellant to the [F1311 prosecutor].

[F1312 (9A) The [F1313 Sheriff Appeal Court] may, on cause shown, extend the periods of 14 days mentioned in subsection (9) above.]

(10) The [F1314 Clerk of the Sheriff Appeal Court] shall forthwith intimate—

(a) a decision under subsection (1) or (5) above; and

(b) in the case of a refusal of leave to appeal, the reasons for the decision,

to the appellant or his solicitor and to the [F1315 prosecutor].

Textual Amendments

F1298 Words in s. 180(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 9(2); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1299 Words in s. 180(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 9(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1300 Words in s. 180(2)(b) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 9(4); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1301 Words in s. 180(3) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 25(1)(a)(i), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1302 Words in s. 180(3) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 9(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1303 Words in s. 180(3) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 25(1)(a)(ii), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1304 Words in s. 180(4)(4A) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 9(3); S.S.I. 2015/247, art. 2, sch. (with art. 6); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1305 S. 180(4A) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 25(1)(b), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1306 Words in s. 180(5) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 9(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1307 Words in s. 180(8) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 9(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1308 Words in s. 180(9) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 9(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1309 Words in s. 180(9)(a) substituted (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 18(2)(a)(i); S.S.I. 2007/250, art. 3(h)(i) (subject to art. 4(2))

F1310 Words in s. 180(9)(b) substituted (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 18(2)(a)(ii); S.S.I. 2007/250, art. 3(h)(i) (subject to art. 4(2))

F1311 Word in s. 180(9)(b) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 9(5); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1312 S. 180(9A) inserted (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 18(2)(b); S.S.I. 2007/250, art. 3(h)(i) (subject to art. 4(2))

F1313 Words in s. 180(9A) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 9(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1314 Words in s. 180(10) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 9(4); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1315 Word in s. 180(10) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 9(5); S.S.I. 2015/247, art. 2, sch. (with art. 6)

Modifications etc. (not altering text)

C281 S. 180(10) excluded by 2006 asp 10, s. 96A(5) (as inserted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 9(6) (with art. 4))

181 [F1316 Stated case: directions by Sheriff Appeal Court.] S

(1) Without prejudice to any other power of relief which the [F1317 Sheriff Appeal Court] may have, where it appears to that court on application made in accordance with subsection (2) below, that the applicant has failed to comply with any of the requirements of—

(a) subsection (1) of section 176 of this Act; or

(b) subsection (1) or (9) of section 179 of this Act,

the [F1317 Sheriff Appeal Court] may direct that such further period of time as it may think proper be afforded to the applicant to comply with any requirement of the aforesaid provisions.

[F1318 (1A) Where an application for a direction under subsection (1)—

(a) is made by the person convicted, and

(b) relates to the requirements of section 176(1),

the Sheriff Appeal Court may make a direction only if it is satisfied that doing so is justified by exceptional circumstances.

(1B) In considering whether there are exceptional circumstances for the purpose of subsection (1A), the Sheriff Appeal Court must have regard to—

(a) the length of time that has elapsed between the expiry of the period mentioned in section 176(1)(a) and the making of the application,

(b) the reasons stated in accordance with subsection (2A)(a)(i),

(c) the proposed grounds of appeal.]

(2) Any application for a direction under subsection (1) above shall be made in writing to the [F1319 Clerk of the Sheriff Appeal Court] and shall state the ground for the application, and, in the case of an application for the purposes of paragraph (a) of subsection (1) above, notification of the application shall be made by the appellant or his solicitor to the clerk of the court from which the appeal is to be taken, and the clerk shall thereupon transmit the complaint, documentary productions and any other proceedings in the cause to the [F1319 Clerk of the Sheriff Appeal Court].

[F1320 (2A) An application for a direction under subsection (1) in relation to the requirements of section 176(1) of this Act must—

(a) state—

(i) the reasons why the applicant failed to comply with the requirements of section 176(1), and

(ii) the proposed grounds of appeal, and

(b) be intimated in writing by the applicant to the respondent or the respondent's solicitor.

(2B) If the respondent so requests within 7 days of receipt of intimation of the application under subsection (2A)(b), the respondent must be given an opportunity to make representations before the application is determined.

F1321 (2C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(3) The [F1322 Sheriff Appeal Court] shall dispose of any application under subsection (1) above in like manner as an application to review the decision of an inferior court on a grant of bail, but shall have power—

(a) to dispense with a hearing F1323 ...; and

(b) to make such enquiry in relation to the application as the court may think fit,

and when the [F1322 Sheriff Appeal Court] has disposed of the application the [F1324 Clerk of the Sheriff Appeal Court] shall inform the clerk of the inferior court of the result.

F1325 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F1326 (5) If the Sheriff Appeal Court makes a direction under subsection (1), it must—

(a) give reasons for the decision in writing, and

(b) give the reasons in ordinary language.]

Textual Amendments

F1316 S. 181 title substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 10(2); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1317 Words in s. 181(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 10(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1318 S. 181(1A)(1B) inserted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 89(2), 117(2); S.S.I. 2016/426, art. 2, sch.

F1319 Words in s. 181(2) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 10(6); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1320 S. 181(2A)-(2C) inserted (30.10.2010) by Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (asp 15), ss. 5(3)(a), 9 (with s. 5(4))

F1321 S. 181(2C) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 89(3), 117(2); S.S.I. 2016/426, art. 2, sch.

F1322 Words in s. 181(3) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 10(7)(a); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1323 Words in s. 181(3)(a) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 89(4), 117(2); S.S.I. 2016/426, art. 2, sch.

F1324 Words in s. 181(3) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 10(7)(b); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1325 S. 181(4) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 22 (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1326 S. 181(5) inserted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 89(5), 117(2); S.S.I. 2016/426, art. 2, sch.

182 Stated case: hearing of appeal. S

(1) A stated case under this Part of this Act shall be heard by the [F1327 Sheriff Appeal Court] on such date as it may fix.

(2) For the avoidance of doubt, where an appellant, in his application under section 176(1) of this Act (or in a duly made amendment or addition to that application), refers to an alleged miscarriage of justice, but in stating a case under section 179(7) of this Act the inferior court is unable to take the allegation into account, the [F1328 Sheriff Appeal Court] may nevertheless have regard to the allegation at a hearing under subsection (1) above.

(3) Except by leave of the [F1329 Sheriff Appeal Court] on cause shown, it shall not be competent for an appellant to found any aspect of his appeal on a matter not contained in his application under section 176(1) of this Act (or in a duly made amendment or addition to that application).

(4) Subsection (3) above shall not apply as respects any ground of appeal specified as an arguable ground of appeal by virtue of subsection (7) of section 180 of this Act.

(5) Without prejudice to any existing power of the [F1330 Sheriff Appeal Court], that court may in hearing a stated case—

(a) order the production of any document or other thing connected with the proceedings;

(b) hear any F1331 . . .evidence relevant to any alleged miscarriage of justice or order such evidence to be heard by [F1332 an Appeal Sheriff] at the [F1330 Sheriff Appeal Court] or by such other person as it may appoint for that purpose;

(c) take account of any circumstances relevant to the case which were not before the trial judge;

(d) remit to any fit person to enquire and report in regard to any matter or circumstance affecting the appeal;

(e) appoint a person with expert knowledge to act as assessor to the [F1330 Sheriff Appeal Court] in any case where it appears to the court that such expert knowledge is required for the proper determination of the case;

(f) take account of any matter proposed in any adjustment rejected by the trial judge and of the reasons for such rejection;

(g) take account of any evidence contained in a note of evidence such as is mentioned in section 179(7) of this Act.

(6) The [F1333 Sheriff Appeal Court] may at the hearing remit the stated case back to the inferior court to be amended and returned.

Textual Amendments

F1327 Words in s. 182(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 11(2); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1328 Words in s. 182(2) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 11(2); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1329 Words in s. 182(3) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 11(2); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1330 Words in s. 182(5) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 11(2); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1331 Word in s. 182(5)(b) repealed (1.8.1997) by 1997 c. 48, s. 62(1)(2), Sch. 1 para. 21(21), Sch. 3; S.I. 1997/1712, art. 3, Sch. (subject to arts. 4 and 5)

F1332 Words in s. 182(5)(b) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 11(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1333 Words in s. 182(6) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 11(2); S.S.I. 2015/247, art. 2, sch. (with art. 6)

Modifications etc. (not altering text)

C282 S. 182 applied (1.7.2013) by The Construction Products Regulations 2013 (S.I. 2013/1387), regs. 1, 9(9)

C283 S. 182(5)(a)-(e) applied (1.4.1996) by 1984 c. 12, s. 81(8) (as substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 48(3))

S. 182(5)(a)-(e) applied (1.7.1997) by S.I. 1997/831, reg. 19(1)-(4), Sch. 15 para. 5(8)

S. 182(5)(a)-(e) applied (3.7.2001) by S.I. 2001/1701, reg. 17, Sch. 13 para. 14(8)

S. 182(5)(a)-(e) applied (20.11.2002) by Copyright, Designs and Patents Act 1988 (c. 48), ss. 114B(10), 204B(10), 297D(10) (as inserted by Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002 (c. 25), ss. 3, 4, 5; S.I. 2002/2749, art. 2)

S. 182(5)(a)-(e) applied (7.3.2005) by The Electromagnetic Compatibility Regulations 2005 (S.I. 2005/281), reg. 98(8)

C284 S. 182(5)(a)-(e) applied (8.4.2000) by S.I. 2000/730, reg. 18, Sch. 9 para. 4(8) (which amendment was superseded by S.I. 2003/3144, reg. 2(10))

S. 182(5)(a)-(e) applied (29.12.2003) by S.I. 2000/730, Sch. 9 para. 22(8) (as substituted (29.12.2003) by S.I. 2003/3144, reg. 2(10))

S. 182(5)(a)-(e) applied (20.7.2007) by The Electromagnetic Compatibility Regulations 2006 (S.I. 2006/3418), reg. 59(8) (with savings in regs. 7-14, 63, 64)

C285 S. 182(5)(a)-(e) applied (1.12.2008) by The REACH Enforcement Regulations 2008 (S.I. 2008/2852), reg. 9(1), Sch. 6 Pt. 3 para. 36 (with reg. 19)

C286 S. 182(5)(a)-(e) applied by 1949 c. 88, s. 35ZD(10) (as inserted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 13, 24(1); S.I. 2014/2330, art. 3, Sch.)

C287 S. 182(5)(a)-(e) applied (1.12.2008) by The REACH Enforcement Regulations 2008 (S.I. 2008/2852), reg. 9(1), Sch. 6 Pt. 3 para. 36 (with reg. 19)

C288 S. 182(5)(a)-(e) applied (1.12.2008) by The REACH Enforcement Regulations 2008 (S.I. 2008/2852), reg. 9(1), Sch. 6 Pt. 3 para. 36 (with reg. 19)

C289 S. 182(5)(a)-(e) applied (1.12.2008) by The REACH Enforcement Regulations 2008 (S.I. 2008/2852), reg. 9(1), Sch. 6 Pt. 3 para. 36 (with reg. 19)

C290 S. 182(5)(a)-(e) applied (1.12.2008) by The REACH Enforcement Regulations 2008 (S.I. 2008/2852), reg. 9(1), Sch. 6 Pt. 3 para. 36 (with reg. 19)

183 Stated case: disposal of appeal. S

(1) The [F1334 Sheriff Appeal Court] may, subject to subsection (3) below and to section 190(1) of this Act, dispose of a stated case by—

(a) remitting the cause to the inferior court with its opinion and any direction thereon;

(b) affirming the verdict of the inferior court;

(c) setting aside the verdict of the inferior court and either quashing the conviction or, subject to subsection (2) below, substituting therefor an amended verdict of guilty; or

(d) setting aside the verdict of the inferior court and granting authority to bring a new prosecution in accordance with section 185 of this Act.

[F1335 (1A) Where an appeal against conviction is by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16), paragraphs (a) and (d) of subsection (1) do not apply.]

(2) An amended verdict of guilty substituted under subsection (1)(c) above must be one which could have been returned on the complaint before the inferior court.

(3) The [F1336 Sheriff Appeal Court] shall, in an appeal—

(a) against both conviction and sentence, subject to section 190(1) of this Act, dispose of the appeal against sentence; or

(b) by the prosecutor, against sentence, dispose of the appeal,

by exercise of the power mentioned in section 189(1) of this Act.

(4) In setting aside, under subsection (1) above, a verdict the [F1337 Sheriff Appeal Court] may quash any sentence imposed on the appellant as respects the complaint, and—

(a) in a case where it substitutes an amended verdict of guilty, whether or not the sentence related to the verdict set aside; or

(b) in any other case, where the sentence did not so relate,

may pass another (but not more severe) sentence in substitution for the sentence so quashed.

(5) For the purposes of subsections (3) and (4) above, “sentence” shall be construed as including disposal or order.

(6) Where an appeal against acquittal is sustained, the [F1338 Sheriff Appeal Court] may—

(a) convict and, subject to subsection (7) below, sentence the respondent;

(b) remit the case to the inferior court with instructions to convict and sentence the respondent, who shall be bound to attend any diet fixed by the court for such purpose; or

(c) remit the case to the inferior court with their opinion thereon.

(7) Where the [F1339 Sheriff Appeal Court] sentences the respondent under subsection (6)(a) above it shall not in any case impose a sentence beyond the maximum sentence which could have been passed by the inferior court.

(8) Any reference in subsection (6) above to convicting and sentencing shall be construed as including a reference to—

(a) convicting and making some other disposal; or

(b) convicting and deferring sentence.

(9) The [F1340 Sheriff Appeal Court] shall have power in an appeal under this Part of this Act to award such expenses both in the [F1340 Sheriff Appeal Court] and in the inferior court as it may think fit.

(10) Where, following an appeal, other than an appeal under section 175(2)(b) or (3) of this Act, the appellant remains liable to imprisonment or detention under the sentence of the inferior court, or is so liable under a sentence passed in the appeal proceedings the [F1341 Sheriff Appeal Court] shall have the power where at the time of disposal of the appeal the appellant—

(a) was at liberty on bail, to grant warrant to apprehend and imprison or detain the appellant for a term, to run from the date of such apprehension, not longer than that part of the term or terms of imprisonment or detention specified in the sentence brought under review which remained unexpired at the date of liberation;

(b) is serving a term or terms of imprisonment or detention imposed in relation to a conviction subsequent to the conviction appealed against, to exercise the like powers in regard to him as may be exercised, in relation to an appeal which has been abandoned, by a court of summary jurisdiction in pursuance of section 177(6) of this Act.

Textual Amendments

F1334 Words in s. 183(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 12; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1335 S. 183(1A) inserted (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), s. 17(3), sch. para. 16; S.S.I. 2011/365, art. 3

F1336 Words in s. 183(3) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 12; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1337 Words in s. 183(4) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 12; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1338 Words in s. 183(6) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 12; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1339 Words in s. 183(7) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 12; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1340 Words in s. 183(9) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 12; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1341 Words in s. 183(10) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 12; S.S.I. 2015/247, art. 2, sch. (with art. 6)

184 Abandonment of appeal. S

(1) An appellant in an appeal such as is mentioned in section 176(1) of this Act may at any time prior to lodging the case with the [F1342 Clerk of the Sheriff Appeal Court] abandon his appeal by minute signed by himself or his solicitor, written on the complaint or lodged with the clerk of the inferior court, and intimated to the respondent or the respondent’s solicitor, but such abandonment shall be without prejudice to any other competent mode of appeal, review, advocation or suspension.

(2) Subject to section 191 of this Act, on the case being lodged with the [F1343 Clerk of the Sheriff Appeal Court], the appellant shall be held to have abandoned any other mode of appeal which might otherwise have been open to him.

Textual Amendments

F1342 Words in s. 184(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 13; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1343 Words in s. 184(2) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 13; S.S.I. 2015/247, art. 2, sch. (with art. 6)

New prosecution S

185 Authorisation of new prosecution. S

(1) Subject to subsection (2) below, where authority is granted under section 183(1)(d) of this Act, a new prosecution may be brought charging the accused with the same or any similar offence arising out of the same facts; and the proceedings out of which the stated case arose shall not be a bar to such prosecution.

(2) 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.

(3) No sentence may be passed on conviction under the new prosecution which could not have been passed on conviction under the earlier proceedings.

(4) A new prosecution may be brought under this section, notwithstanding that any time limit (other than the time limit mentioned in subsection (5) below) for the commencement of such proceedings has elapsed.

(5) Proceedings in a prosecution under this section shall be commenced within two months of the date on which authority to bring the prosecution was granted.

(6) In proceedings in a new prosecution under this section it shall, subject to subsection (7) below, be competent for either party to lead any evidence which it was competent for him to lead in the earlier proceedings.

(7) 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 (6) above which would not have been competent but for that subsection.

(8) For the purposes of subsection (5) above, proceedings shall be deemed to be commenced—

(a) in a case where such warrant is executed without unreasonable delay, on the date on which a warrant to apprehend or to cite the accused is granted; and

(b) in any other case, on the date on which the warrant is executed.

(9) Where the two months mentioned in subsection (5) above elapse and no new prosecution has been brought under this section, the order under section 183(1)(d) of this Act setting aside the verdict shall have the effect, for all purposes, of an acquittal.

(10) On granting authority under section 183(1)(d) of this Act to bring a new prosecution, the [F1344 Sheriff Appeal 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.

Textual Amendments

F1344 Words in s. 185(10) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 14; S.S.I. 2015/247, art. 2, sch. (with art. 6)

Appeals against sentence S

186 Appeals against sentence only. S

(1) An appeal under section [F1345 175(2)(b), (c) or (cza)] F1346 ..., or by virtue of section 175(4), of this Act shall be by note of appeal, which shall state the ground of appeal.

(2) The note of appeal shall, where the appeal is—

(a) under section [F1345 175(2)(b), (c) or (cza)] F1346 ... be lodged, within one week of—

(i) the passing of the sentence; F1347 . . . [F1348 or]

(ii) the making of the order disposing of the case or deferring sentence; F1349 ...

F1349 (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

with the clerk of the court from which the appeal is to be taken; or

(b) by virtue of section 175(4) be so lodged within four weeks of such passing or making.

(3) The clerk of court on receipt of the note of appeal shall—

(a) send a copy of the note to the respondent or his solicitor; and

(b) obtain a report from the judge who sentenced the convicted person or, as the case may be, who disposed of the case or deferred sentence.

(4) Subject to subsection (5) below, the clerk of court shall within two weeks of the passing of the sentence or within two weeks of the disposal or order against which the appeal is taken—

(a) send to the [F1350 Clerk of the Sheriff Appeal Court] the note of appeal, together with the report mentioned in subsection (3)(b) above, a certified copy of the complaint, the minute of proceedings and any other relevant documents; and

(b) send copies of that report to the appellant and respondent or their solicitors.

(5) [F1351 The sheriff principal of the sheriffdom in which the judgment was pronounced may, on cause shown,] extend the period of two weeks specified in subsection (4) above for such period as he considers reasonable.

(6) Subject to subsection (4) above, the report mentioned in subsection (3)(b) above shall be available only to the [F1352 Sheriff Appeal Court], the parties and, on such conditions as may be prescribed by Act of Adjournal, such other persons or classes of persons as may be so prescribed.

(7) Where the judge’s report is not furnished within the period mentioned in subsection (4) above or such period as extended under subsection (5) above, the [F1353 Sheriff Appeal Court] may extend such period, or, if it thinks fit, hear and determine the appeal without the report.

(8) Section 181 of this Act shall apply where an appellant fails to comply with the requirement of subsection (2)(a) above as they apply where an applicant fails to comply with any of the requirements of section 176(1) of this Act.

(9) An appellant under section [F1345 175(2)(b), (c) or (cza)] F1354 ..., or by virtue of section 175(4), of this Act may at any time prior to the hearing of the appeal abandon his appeal by minute, signed by himself or his solicitor, lodged—

(a) in a case where the note of appeal has not yet been sent under subsection (4)(a) above to the [F1355 Clerk of the Sheriff Appeal Court], with the clerk of court;

(b) in any other case, with the [F1356 Clerk of the Sheriff Appeal Court],

and intimated to the respondent.

(10) Sections 176(5), 177 and 182(5)(a) to (e) of this Act shall apply to appeals under section [F1345 175(2)(b), (c) or (cza)] F1354 ..., or by virtue of section 175(4), of this Act as they apply to appeals under section 175(2)(a) or (d) of this Act, except that, for the purposes of such application to any appeal by virtue of section 175(4), references in subsections (1) to (4) of section 177 to the appellant shall be construed as references to the convicted person and subsections (6) and (7) of that section shall be disregarded.

Textual Amendments

F1345 Words in s. 186(1)(2)(a)(9)(10) substituted (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 13; S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F1346 Words in s. 186(1)(2) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 23(a) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1347 Word in s. 186(2)(a) repealed (4.10.2004) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 24(5)(a), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)

F1348 Word in s. 186(2)(a)(i) inserted (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 23(b)(i) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1349 S. 186(2)(a)(iii) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 23(b)(ii) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1350 Words in s. 186(4)(a) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 15(2); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1351 Words in s. 186(5) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 25(2), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1352 Words in s. 186(6) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 15(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1353 Words in s. 186(7) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 15(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1354 Words in s. 186(9)(10) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 23(a) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1355 Words in s. 186(9)(a) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 15(2); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1356 Words in s. 186(9)(b) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 15(2); S.S.I. 2015/247, art. 2, sch. (with art. 6)

Modifications etc. (not altering text)

C291 S. 186(4)(b) excluded by 2006 asp 10, s 96A(5) (as inserted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 9(6) (with art. 4))

187 Leave to appeal against sentence. S

(1) The decision whether to grant leave to appeal for the purposes of section [F1357 175(2)(b), (c) or (cza)] F1358 ... of this Act shall be made by [F1359 an Appeal Sheriff] of the [F1360 Sheriff Appeal Court] who shall—

(a) if he considers that the note of appeal and other documents sent to the [F1361 Clerk of the Sheriff Appeal Court] under section 186(4)(a) of this Act disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and

(b) in any other case—

(i) refuse leave to appeal and give reasons in writing for the refusal; and

(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.

(2) A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (3) below [F1362 (and if that period is extended under subsection (3A) below before the period being extended expires, until the expiry of the period as so extended)] without an application to the [F1363 Sheriff Appeal Court] for leave to appeal having been lodged by the appellant under [F1364 subsection (3) below].

(3) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (9) below, apply to the [F1365 Sheriff Appeal Court] for leave to appeal.

[F1366 (3A) The [F1367 Sheriff Appeal Court] may, on cause shown, extend the period of 14 days mentioned in subsection (3) above, or that period as extended under this subsection, whether or not the period to be extended has expired (and if that period of 14 days has expired, whether or not it expired before section 25(3) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) came into force).]

(4) In deciding an application under subsection (3) above the [F1368 Sheriff Appeal Court] shall—

(a) if, after considering the note of appeal and other documents mentioned in subsection (1) above and the reasons for the refusal, it is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and

(b) in any other case—

(i) refuse leave to appeal and give reasons in writing for the refusal; and

(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.

(5) The question whether to grant leave to appeal under subsection (1) or (4) above shall be considered and determined in chambers without the parties being present.

(6) Comments in writing made under subsection (1)(a) or (4)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.

(7) Where the arguable grounds of appeal are specified by virtue of subsection (6) above it shall not, except by leave of the [F1369 Sheriff Appeal Court] on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.

(8) Any application by the appellant for the leave of the [F1370 Sheriff Appeal Court] under subsection (7) above—

(a) shall be made [F1371 within 14 days of the date of intimation under subsection (9) below]; and

(b) shall, [F1372 within 14 days of] that date, be intimated by the appellant to the [F1373 prosecutor].

[F1374 (8A) The [F1375 Sheriff Appeal Court] may, on cause shown, extend the periods of 14 days mentioned in subsection (8) above.]

(9) The [F1376 Clerk of the Sheriff Appeal Court] shall forthwith intimate—

(a) a decision under subsection (1) or (4) above; and

(b) in the case of a refusal of leave to appeal, the reasons for the decision,

to the appellant or his solicitor and to the [F1377 prosecutor].

Textual Amendments

F1357 Words in s. 187(1) substituted (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 14; S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F1358 Words in s. 187(1) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 24 (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1359 Words in s. 187(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 16(2); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1360 Words in s. 187(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 16(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1361 Words in s. 187(1)(a) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 16(4); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1362 Words in s. 187(2) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 25(3)(a)(i), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1363 Words in s. 187(2) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 16(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1364 Words in s. 187(2) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 25(3)(a)(ii), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1365 Words in s. 187(3) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 16(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1366 S. 187(3A) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 25(3)(b), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1367 Words in s. 187(3A) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 16(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1368 Words in s. 187(4) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 16(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1369 Words in s. 187(7) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 16(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1370 Words in s. 187(8) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 16(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1371 Words in s. 187(8)(a) substituted (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 18(3)(a)(i); S.S.I. 2007/250, art. 3(h)(i) (subject to art. 4(2))

F1372 Words in s. 187(8)(b) substituted (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 18(3)(a)(ii); S.S.I. 2007/250, art. 3(h)(i) (subject to art. 4(2))

F1373 Word in s. 187(8)(b) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 16(5); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1374 S. 187(8A) inserted (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 18(3)(b); S.S.I. 2007/250, art. 3(h)(i) (subject to art. 4(2))

F1375 Words in s. 187(8A) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 16(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1376 Words in s. 187(9) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 16(4); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1377 Word in s. 187(9) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 16(5); S.S.I. 2015/247, art. 2, sch. (with art. 6)

Modifications etc. (not altering text)

C292 S. 187(9) excluded by 2006 asp 10, s 96A(5) (as inserted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 9(6) (with art. 4))

Disposal of appeals S

188 Setting aside conviction or sentence: prosecutor’s consent or application. S

(1) Without prejudice to section 175(3) or (4) of this Act, where—

(a) an appeal has been taken under section 175(2) of this Act or by suspension or otherwise and the prosecutor is not prepared to maintain the judgment appealed against he may, by a relevant minute, consent to the conviction or sentence or, as the case may be, conviction and sentence (“sentence” being construed in this section as including disposal or order) being set aside either in whole or in part; or

(b) no such appeal has been taken but the prosecutor is, at any time, not prepared to maintain the judgment on which a conviction is founded or the sentence imposed following such conviction he may, by a relevant minute, apply for the conviction or sentence or, as the case may be, conviction and sentence to be set aside.

(2) For the purposes of subsection (1) above, a “relevant minute” is a minute, signed by the prosecutor—

(a) setting forth the grounds on which he is of the opinion that the judgment cannot be maintained; and

(b) written on the complaint or lodged with the clerk of court.

(3) A copy of any minute under subsection (1) above shall be sent by the prosecutor to the convicted person or his solicitor and the clerk of court shall—

(a) thereupon ascertain and note on the record, whether that person or solicitor desires to be heard by the [F1378 Sheriff Appeal Court] before the appeal, or as the case may be application, is disposed of; and

(b) thereafter transmit the complaint and relative proceedings to the [F1379 Clerk of the Sheriff Appeal Court].

(4) The [F1380 Clerk of the Sheriff Appeal Court], on receipt of a complaint and relative proceedings transmitted under subsection (3) above, shall lay them before any [F1381 Appeal Sheriff] of the [F1382 Sheriff Appeal Court] either in court or in chambers who, after hearing parties if they desire to be heard, may—

(a) set aside the conviction or the sentence, or both, either in whole or in part and—

(i) award such expenses to the convicted person, both in the [F1382 Sheriff Appeal Court] and in the inferior court, as the [F1381 Appeal Sheriff] may think fit;

(ii) where the conviction is set aside in part, pass another (but not more severe) sentence in substitution for the sentence imposed in respect of that conviction; and

(iii) where the sentence is set aside, pass another (but not more severe) sentence; or

(b) refuse to set aside the conviction or sentence or, as the case may be, conviction and sentence, in which case the complaint and proceedings shall be returned to the clerk of the inferior court.

(5) Where an appeal has been taken and the complaint and proceedings in respect of that appeal returned under subsection (4)(b) above, the appellant shall be entitled to proceed with the appeal as if it had been marked on the date of their being received by the clerk of the inferior court on such return.

(6) Where an appeal has been taken and a copy minute in respect of that appeal sent under subsection (3) above, the preparation of the draft stated case shall be delayed pending the decision of the [F1383 Sheriff Appeal Court].

(7) The period from an application being made under subsection (1)(b) above until its disposal under subsection (4) above (including the day of application and the day of disposal) shall, in relation to the conviction to which the application relates, be disregarded in any computation of time specified in any provision of this Part of this Act.

Textual Amendments

F1378 Words in s. 188(3)(a) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 17(2); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1379 Words in s. 188(3)(b) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 17(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1380 Words in s. 188(4) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 17(3); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1381 Words in s. 188(4) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 17(4); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1382 Words in s. 188(4) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 17(2); S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1383 Words in s. 188(6) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 17(2); S.S.I. 2015/247, art. 2, sch. (with art. 6)

189 Disposal of appeal against sentence. S

(1) An appeal against sentence by note of appeal shall be heard by the [F1384 Sheriff Appeal Court] on such date as it may fix, and the [F1384 Sheriff Appeal Court] may, subject to section 190(1) of this Act, dispose of such appeal by—

(a) affirming the sentence; or

(b) if the Court thinks that, having regard to all the circumstances, including any F1385 . . . evidence such as is mentioned in section 175(5) of this Act, a different sentence should have been passed, quashing the sentence and, subject to subsection (2) below, passing another sentence, whether more or less severe, in substitution therefor.

(2) In passing another sentence under subsection (1)(b) above, the Court shall not in any case increase the sentence beyond the maximum sentence which could have been passed by the inferior court.

F1386 (2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The [F1387 Sheriff Appeal Court] shall have power in an appeal by note of appeal to award such expenses both in the [F1387 Sheriff Appeal Court] and in the inferior court as it may think fit.

(4) Where, following an appeal under section 175(2)(b) or (c), or by virtue of section 175(4), of this Act, the convicted person remains liable to imprisonment or detention under the sentence of the inferior court or is so liable under a sentence passed in the appeal proceedings, the [F1388 Sheriff Appeal Court] shall have power where at the time of disposal of the appeal the convicted person—

(a) was at liberty on bail, to grant warrant to apprehend and imprison or detain the appellant for a term, to run from the date of such apprehension, not longer than that part of the term or terms of imprisonment or detention specified in the sentence brought under review which remained unexpired at the date of liberation; or

(b) is serving a term or terms of imprisonment or detention imposed in relation to a conviction subsequent to the conviction in respect of which the sentence appealed against was imposed, to exercise the like powers in regard to him as may be exercised, in relation to an appeal which has been abandoned, by a court of summary jurisdiction in pursuance of section 177(6) of this Act.

(5) In subsection (1) above, “appeal against sentence” shall, without prejudice to the generality of the expression, be construed as including an appeal under section 175(2)(c) [F1389 or (cza)], and any appeal by virtue of section 175(4), of this Act; and without prejudice to subsection (6) below, other references to sentence in that subsection and in subsection (4) above shall be construed accordingly.

(6) In disposing of any appeal in a case where the accused has not been convicted, the [F1390 Sheriff Appeal Court] may proceed to convict him; and where it does, the reference in subsection (4) above to the conviction in respect of which the sentence appealed against was imposed shall be construed as a reference to the disposal or order appealed against.

(7) In disposing of an appeal under section 175(2)(b) to (d), (3)(b) or (4) of this Act the [F1391 Sheriff Appeal Court] may, without prejudice to any other power in that regard, pronounce an opinion on

[F1392 (a)] the sentence or other disposal or order which is appropriate in any similar case; F1393 ...

F1394 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1384 Words in s. 189(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 18; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1385 Word in s. 189(1)(b) repealed (1.8.1997) by 1997 c. 48, s. 62(1)(2), Sch. 1 para. 21(22), Sch. 3; S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F1386 S. 189(2A) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 25(a) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1387 Words in s. 189(3) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 18; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1388 Words in s. 189(4) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 18; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1389 Words in s. 189(5) inserted (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 15; S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F1390 Words in s. 189(6) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 18; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1391 Words in s. 189(7) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 18; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1392 S. 189(7): words "become" para. (a) (10.1.2005) by virtue of Protection of Children (Scotland) Act 2003 (asp 5), ss. 16(10)(b), 22(2); S.S.I. 2004/522, art. 2 (as amended by S.S.I. 2004/556, art. 2)

F1393 Words in s. 189(7)(a) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 25(b)(i) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1394 S. 189(7)(b) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 25(b)(ii) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

190 Disposal of appeal where appellant [F1395 not criminally responsible]. S

(1) In relation to any appeal under section 175(2) of this Act, the [F1396 Sheriff Appeal Court] shall, where it appears to it that the appellant committed the act charged against him but that he was [F1397 not, because of section 51A of this Act, criminally responsible for it], dispose of the appeal by—

(a) setting aside the verdict of the inferior court and substituting therefor a verdict of acquittal [F1398 by reason of the special defence set out in section 51A of this Act]; and

(b) quashing any sentence imposed on the appellant as respects the complaint and—

(i) making, in respect of the appellant, any order mentioned in section 57(2)(a) to (d) of this Act; or

(ii) making no order.

(2) [F1399 Subsections (3) to (6)] of section 57 of this Act shall apply to an order made under subsection (1)(b)(i) above as it applies to an order made under subsection (2) of that section.

Textual Amendments

F1395 Words in s. 190 heading substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 57; S.S.I. 2012/160, art. 3, sch.

F1396 Words in s. 190(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 19; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1397 Words in s. 190(1) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 58(a); S.S.I. 2012/160, art. 3, sch.

F1398 Words in s. 190(1) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 58(b); S.S.I. 2012/160, art. 3, sch.

F1399 Words in s. 190(2) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(2)-(4), Sch. 4 para. 8(12); S.S.I. 2005/161, art. 3

Miscellaneous S

191 Appeal by suspension or advocation on ground of miscarriage of justice. S

(1) Notwithstanding section 184(2) of this Act, a party to a summary prosecution may, where an appeal under section 175 of this Act would be incompetent or would in the circumstances be inappropriate, appeal to the [F1400 Sheriff Appeal Court], by bill of suspension against a conviction or, as the case may be, by advocation against an acquittal on the ground of an alleged miscarriage of justice in the proceedings.

(2) Where the alleged miscarriage of justice is referred to in an application under section 176(1) of this Act, for a stated case as regards the proceedings (or in a duly made amendment or addition to that application), an appeal under subsection (1) above shall not proceed without the leave of the [F1401 Sheriff Appeal Court] until the appeal to which the application relates has been finally disposed of or abandoned.

(3) Sections 182(5)(a) to (e), 183(1)(d) and (4) and 185 of this Act shall apply to appeals under this section as they apply to appeals such as are mentioned in section 176(1) of this Act.

(4) This section is without prejudice to any rule of law relating to bills of suspension or advocation in so far as such rule of law is not inconsistent with this section.

Textual Amendments

F1400 Words in s. 191(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 20; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1401 Words in s. 191(2) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 20; S.S.I. 2015/247, art. 2, sch. (with art. 6)

[F1402 191A Time limit for lodging bills of advocation and bills of suspension S

(1) This section applies where a party wishes—

(a) to appeal to the [F1403 Sheriff Appeal Court] under section 191(1) of this Act by bill of suspension against a conviction or by advocation against an acquittal, or

(b) to appeal to the [F1404 Sheriff Appeal Court] against, or to bring under review of the [F1404 Sheriff Appeal Court], any other decision in a summary prosecution by bill of suspension or by advocation.

(2) The party must lodge the bill of suspension or bill of advocation within 3 weeks of the date of the conviction, acquittal or, as the case may be, other decision to which the bill relates.

(3) The [F1405 Sheriff Appeal Court] may, on the application of the party, extend the time limit in subsection (2).

(4) An application under subsection (3) must—

(a) state—

(i) the reasons why the applicant failed to comply with the time limit in subsection (2), and

(ii) the proposed grounds of appeal or review, and

(b) be intimated in writing by the applicant to the other party to the prosecution.

(5) If the other party so requests within 7 days of receipt of intimation of the application under subsection (4)(b), the other party must be given an opportunity to make representations before the application is determined.

(6) Any representations may be made in writing or, if the other party so requests, orally at a hearing; and if a hearing is fixed, the applicant must also be given an opportunity to be heard.]

Textual Amendments

F1402 S. 191A inserted (30.10.2010) by Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (asp 15), ss. 6(1), 9 (with s. 6(2))

F1403 Words in s. 191A(1)(a) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 21; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1404 Words in s. 191A(1)(b) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 21; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1405 Words in s. 191A(3) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 21; S.S.I. 2015/247, art. 2, sch. (with art. 6)

[F1406 191B Bill of advocation not competent in respect of certain decisions S

It is not competent to bring under review of the Sheriff Appeal Court by way of bill of advocation a decision of the court of first instance that relates to such objection or denial as is mentioned in section 144(4).]

Textual Amendments

F1406 S. 191B inserted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 93, 117(2); S.S.I. 2016/426, art. 2, sch.

192 Appeals: miscellaneous provisions. S

(1) Where an appellant has been granted bail, whether his appeal is under this Part of this Act or otherwise, he shall appear personally in court at the diet appointed for the hearing of the appeal.

(2) Where an appellant who has been granted bail does not appear at such a diet, the [F1407 Sheriff Appeal Court] shall either—

(a) dispose of the appeal as if it had been abandoned (in which case subsection (5) of section 177 of this Act shall apply accordingly); or

(b) on cause shown permit the appeal to be heard in his absence.

(3) No conviction, sentence, judgement, order of court or other proceeding whatsoever in or for the purposes of summary proceedings under this Act—

(a) shall be quashed for want of form; or

(b) where the accused had legal assistance in his defence, shall be suspended or set aside in respect of any objections to—

(i) the relevancy of the complaint, or to the want of specification therein; or

(ii) the competency or admission or rejection of evidence at the trial in the inferior court,

unless such objections were timeously stated.

(4) The provisions regulating appeals shall, subject to the provisions of this Part of this Act, be without prejudice to any other mode of appeal competent.

(5) Any officer of law may serve any bill of suspension or other writ relating to an appeal.

Textual Amendments

F1407 Words in s. 192(2) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 23; S.S.I. 2015/247, art. 2, sch. (with art. 6)

193 Suspension of disqualification, forfeiture etc. S

(1) Where upon conviction of any person—

(a) any disqualification, forfeiture or disability attaches to him by reason of such conviction; or

(b) any property, matters or things which are the subject of the prosecution or connected therewith are to be or may be ordered to be destroyed or forfeited,

if the court before which he was convicted thinks fit, the disqualification, forfeiture or disability or, as the case may be, destruction or forfeiture or order for destruction or forfeiture shall be suspended pending the determination of any appeal against conviction or sentence (or disposal or order).

(2) Subsection (1) above does not apply in respect of any disqualification, forfeiture or, as the case may be, destruction or forfeiture or order for destruction or forfeiture under or by virtue of any enactment which contains express provision for the suspension of such disqualification, forfeiture or, as the case may be, destruction or forfeiture or order for destruction or forfeiture pending the determination of any appeal against conviction or sentence (or disposal or order).

(3) Where, upon conviction, a fine has been imposed upon a person or a compensation order has been made against him under section 249 of this Act—

(a) the fine or compensation order shall not be enforced against him and he shall not be liable to make any payment in respect of the fine or compensation order; and

(b) any money paid under the compensation order shall not be paid by the clerk of court to the entitled person under subsection (9) of that section,

pending the determination of any appeal against conviction or sentence (or disposal or order).

Modifications etc. (not altering text)

C293 S. 193 excluded (28.11.2011) by Double Jeopardy (Scotland) Act 2011 (asp 16), ss. 11(9), 17(3) (with s. 14); S.S.I. 2011/365, art. 3

[F1408 193A Suspension of certain sentences pending determination of appeal. S

(1) Where a convicted person or the prosecutor appeals to the [F1409 Sheriff Appeal Court] under section 175 of this Act F1410 ..., the court may on the application of the appellant direct that the whole, or any remaining part, of a relevant sentence shall be suspended until the appeal, if it is proceeded with, is determined.

(2) Where the court has directed the suspension of the whole or any remaining part of a person’s relevant sentence, the person shall, unless the [F1411 Sheriff Appeal Court] otherwise directs, appear personally in court on the day or days fixed for the hearing of the appeal.

(3) Where a person fails to appear personally in court as mentioned in subsection (2) above, the court may—

(a) if he is the appellant—

(i) decline to consider the appeal; and

(ii) dismiss it summarily; or

(b) whether or not he is the appellant—

(i) consider and determine the appeal; or

(ii) make such other order as the court thinks fit.

(4) In this section “relevant sentence” means any one or more of the following—

[F1412 (aa) a community payback order;]

(d) a restriction of liberty order.

F1413 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F1408 S. 193A inserted (1.8.1997 except s. 193A(4)(d) which is in force on 1.7.1998) by 1997 c. 48, s. 24(2); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5); S.I. 1997/2323, art. 5(1)

F1409 Words in s. 193A(1) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 24; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1410 Words in s. 193A(1) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 26 (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))

F1411 Words in s. 193A(2) substituted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 3 para. 24; S.S.I. 2015/247, art. 2, sch. (with art. 6)

F1412 S. 193A(4)(aa) substituted (1.2.2011) for s. 193A(4)(a)-(c) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 16(a); S.S.I. 2010/413, art. 2, Sch. (with art. 3)

F1413 S. 193A(4)(e) repealed (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 16(b); S.S.I. 2010/413, art. 2, Sch. (with art. 3)

194 Computation of time. S

(1) If any period of time specified in any provision of this Part of this Act relating to appeals expires on a Saturday, Sunday or court holiday prescribed for the relevant court, the period shall be extended to expire on the next day which is not a Saturday, Sunday or such court holiday.

(2) [F1414 The sheriff principal of the sheriffdom in which the judgment was pronounced may, on cause shown,] extend any period specified in sections 178(1) and 179(4) and (7) of this Act for such period as he considers reasonable.

(3) For the purposes of sections 176(1)(a) and 178(1) of this Act, summary proceedings shall be deemed to be finally determined on the day on which sentence is passed in open court; except that, where in relation to an appeal—

(a) under section 175(2)(a) or (3)(a); or

(b) in so far as it is against conviction, under section 175(2)(d),

of this Act sentence is deferred under section 202 of this Act, they shall be deemed finally determined on the day on which sentence is first so deferred in open court.

Textual Amendments

F1414 Words in s. 194(2) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 25(4), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

[F1415 PART 10ZA U.K. APPEALS FROM SHERIFF APPEAL COURT

Textual Amendments

F1415 Pt. 10ZA inserted (1.4.2015 for specified purposes, 22.9.2015 in so far as not already in force) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 119, 138(2); S.S.I. 2015/77, art. 2(2)(3), sch.; S.S.I. 2015/247, art. 2, sch.

194ZB Appeal from the Sheriff Appeal Court U.K.

(1) An appeal on a point of law may be taken to the High Court against any decision of the Sheriff Appeal Court in criminal proceedings, but only with the permission of the High Court.

(2) An appeal under subsection (1) may be taken by any party to the appeal in the Sheriff Appeal Court.

(3) The High Court may give permission for an appeal under subsection (1) only if the Court considers that—

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court to hear the appeal.

(4) An application for permission for an appeal under subsection (1) must be made before the end of the period of 14 days beginning with the day on which the decision of the Sheriff Appeal Court that would be the subject of the appeal was made.

(5) The High Court may extend the period of 14 days mentioned in subsection (4) if satisfied that doing so is justified by exceptional circumstances.

194ZC Appeals: applications and procedure U.K.

(1) An appeal under section 194ZB(1) is to be made by way of note of appeal.

(2) A note of appeal must specify the point of law on which the appeal is being made.

(3) For the purposes of considering and deciding an appeal under section 194ZB(1)—

(a) three of the judges of the High Court are to constitute a quorum of the Court,

(b) decisions are to be taken by a majority vote of the members of the Court sitting (including the presiding judge),

(c) each judge sitting may pronounce a separate opinion.

194ZD Application for permission for appeal: determination by single judge U.K.

(1) An application to the High Court for permission for an appeal under section 194ZB(1) is to be determined by a single judge of the High Court.

(2) If the judge gives permission for the appeal, the judge may make comments in writing in relation to the appeal.

(3) If the judge refuses permission for the appeal—

(a) the judge must give reasons in writing for the refusal, and

(b) where the appellant is on bail and the sentence imposed on the appellant on conviction is one of imprisonment, the judge must grant a warrant to apprehend and imprison the appellant.

(4) A warrant under subsection (3)(b) does not take effect until the expiry of the period of 14 days mentioned in section 194ZE(1) (or, where that period is extended under section 194ZE(2) before the period being extended expires, until the expiry of the period as so extended) without an application for permission having been lodged by the appellant under section 194ZE(1).

194ZE Further application for permission where single judge refuses permission U.K.

(1) Where the judge refuses permission for the appeal under section 194ZD, the appellant may, within the period of 14 days beginning with the day on which intimation of the decision is given under section 194ZF(2), apply again to the High Court for permission for the appeal.

(2) The High Court may extend the period of 14 days mentioned in subsection (1), or that period as extended under this subsection, whether or not the period to be extended has expired.

(3) The High Court may extend a period under subsection (2) only if satisfied that doing so is justified by exceptional circumstances.

(4) Three of the judges of the High Court are to constitute a quorum for the purposes of considering an application under subsection (1).

(5) If the High Court gives permission for the appeal, the Court may make comments in writing in relation to the appeal.

(6) If the High Court refuses permission for the appeal—

(a) the Court must give reasons in writing for the refusal, and

(b) where the appellant is on bail and the sentence imposed on the appellant on conviction is one of imprisonment, the Court must grant a warrant to apprehend and imprison the appellant.

194ZF Applications for permission: further provision U.K.

(1) An application for permission for an appeal under section 194ZB(1) is to be considered and determined (whether under section 194ZD or 194ZE)—

(a) in chambers without the parties being present,

(b) by reference to section 194ZB(3), and

(c) on the basis of consideration of—

(i) the note of appeal under section 194ZC(1), and

(ii) such other document or information (if any) as may be specified by act of adjournal.

(2) The Clerk of Justiciary must, as soon as possible, intimate to the appellant or the appellant's solicitor and to the Crown Agent—

(a) a decision under section 194ZD or 194ZE determining the application for permission for an appeal, and

(b) in the case of a refusal of permission for the appeal, the reasons for the decision.

194ZG Restriction of grounds of appeal U.K.

(1) Comments in writing made under section 194ZD(2) or 194ZE(5) may specify the arguable grounds of appeal (whether or not they were stated in the note of appeal) on the basis of which permission for the appeal was given.

(2) Where the arguable grounds of appeal are specified under subsection (1), the appellant may not, except with the permission of the High Court on cause shown, found any aspect of the appeal on a ground of appeal stated in the application for permission but not specified under subsection (1).

(3) An application by the appellant for permission under subsection (2) must—

(a) be made before the end of the period of 14 days beginning with the date of intimation under section 194ZF(2), and

(b) be intimated by the appellant to the Crown Agent before the end of that period.

(4) The High Court may extend the period of 14 days mentioned in subsection (3) if satisfied that doing so is justified by exceptional circumstances.

(5) The appellant may not, except with the permission of the High Court on cause shown, found any aspect of the appeal on a matter not stated in the note of appeal (or in a duly made amendment or addition to the note of appeal).

(6) Subsection (5) does not apply in relation to a matter specified as an arguable ground of appeal under subsection (1).

194ZH Disposal of appeals U.K.

(1) In disposing of an appeal under section 194ZB(1), the High Court may—

(a) remit the case back to the Sheriff Appeal Court with its opinion and any direction as to further procedure in, or disposal of, the case, or

(b) exercise any power that the Sheriff Appeal Court could have exercised in relation to disposal of the appeal proceedings before that Court.

(2) So far as necessary for the purposes or in consequence of the exercise of a power by the High Court by virtue of subsection (1)(b)—

(a) references in Part X to the Sheriff Appeal Court are to be read as including references to the High Court, and

(b) references in Part X to a verdict of or sentence passed by the inferior court are to be read as incuding references to a verdict of or sentence passed by the Sheriff Appeal Court in disposing of the appeal before it.

(3) Subsections (1)(b) and (2) do not affect any power in relation to the consideration or disposal of appeals that the High Court has apart from those subsections.

194ZI Procedure where appellant in custody U.K.

(1) Section 177 (procedure where appellant in custody) applies in the case where a party making an appeal (other than an excepted appeal) under section 194ZB(1) is in custody as it applies in the case where an appellant making an application under section 176 is in custody.

(2) In subsection (1), “excepted appeal” means an appeal against a decision of the Sheriff Appeal Court in—

(a) an appeal under section 32, or

(b) an appeal under section 177(3).

194ZJ Abandonment of appeal U.K.

An appellant in an appeal under section 194ZB(1) may at any time abandon the appeal by minute to that effect—

(a) signed by the appellant or the appellant's solicitor,

(b) lodged with the Clerk of Justiciary, and

(c) intimated to the respondent or the respondent's solicitor.

194ZK Finality of proceedings U.K.

(1) Every interlocutor and sentence (including disposal or order) pronounced by the High Court in disposing of an appeal relating to summary proceedings is final and conclusive and not subject to review by any court whatsoever.

(2) Subsection (1) is subject to—

(a) Part XA and section 288AA, and

(b) paragraph 13(a) of Schedule 6 to the Scotland Act 1998.

(3) It is incompetent to stay or suspend any execution or diligence issuing from the High Court under this Part, except for the purposes of an appeal under—

(a) section 288AA, or

(b) paragraph 13(a) of Schedule 6 to the Scotland Act 1998.

194ZL Computation of time U.K.

If any period of time specified in this Part expires on a Saturday, Sunday or court holiday prescribed for the relevant court, the period is extended to expire on the next day which is not a Saturday, Sunday or such a court holiday.]

[F1416 Part XA S Scottish Criminal Cases Review Commission

Textual Amendments

F1416 Pt. XA (ss. 194A-194L) inserted (1.1.1998 for the purpose of inserting ss. 194A, 194E and 194G, otherwise 1.4.1999) by 1997 c. 48, s. 25(1); S.I. 1997/3004, art. 2, Sch.; S.I. 1999/652, art. 2, Sch. (subject to art. 3)

Modifications etc. (not altering text)

C294 Pt. XA (ss. 194A-194L) extended (1.4.1999) by S.I. 1999/1181, art. 2

The Scottish Criminal Cases Review Commission S

F1417 194A Scottish Criminal Cases Review Commission. S

(1) There shall be established a body corporate to be known as the Scottish Criminal Cases Review Commission (in this Act referred to as “the Commission”).

(2) The Commission shall not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Commission’s property shall not be regarded as property of, or held on behalf of, the Crown.

(3) The Commission shall consist of not fewer than three members.

(4) The members of the Commission shall be appointed by Her Majesty on the recommendation of the Secretary of State.

(5) At least one third of the members of the Commission shall be persons who are legally qualified; and for this purpose a person is legally qualified if he is an advocate or solicitor of at least ten years’ standing.

(6) At least two thirds of the members of the Commission shall be persons who appear to the Secretary of State to have knowledge or experience of any aspect of the criminal justice system; and for the purposes of this subsection the criminal justice system includes, in particular, the investigation of offences and the treatment of offenders.

(7) Schedule 9A to this Act, which makes further provision as to the Commission, shall have effect.

Textual Amendments

F1417 S. 194A inserted (1.1.1998) by 1997 c. 48, s. 25(1); S.I. 1997/3004, art. 2, Sch.

Modifications etc. (not altering text)

C295 S. 194A(4) modified (29.5.2020) by Gender Representation on Public Boards (Scotland) Act 2018 (asp 4), s. 13, sch. 2 para. 7(a); S.S.I. 2020/119, reg. 2

References to High Court S

194B [F1418 References by the Commission] S

(1) The Commission on the consideration of any conviction of a person or of the sentence (other than sentence of death) passed on a person who has been convicted on indictment [F1419 or complaint] may, if they think fit, at any time, and whether or not an appeal against such conviction or sentence has previously been heard and determined by the High Court [F1420 or the Sheriff Appeal Court], refer the whole case to the High Court and F1421 ... the case shall be heard and determined, subject to any directions the High Court may make, as if it were an appeal under Part VIII [F1422 or, as the case may be, Part X] of this Act.

(2) The power of the Commission under this section to refer to the High Court the case of a person convicted shall be exercisable whether or not that person has petitioned for the exercise of Her Majesty’s prerogative of mercy.

(3) This section shall apply in relation to a finding under section 55(2) and an order under section 57(2) of this Act as it applies, respectively, in relation to a conviction and a sentence.

[F1423 (3A) For the purposes of an appeal under Part X of this Act in a case referred to the High Court under subsection (1)—

(a) the High Court may exercise in the case all the powers and jurisdiction that the Sheriff Appeal Court would, had the case been an appeal to that Court, have had in relation to the case by virtue of section 118 of the Courts Reform (Scotland) Act 2014, and

(b) accordingly, Part X of this Act has effect in relation to the case subject to the following modifications—

(i) references to the Sheriff Appeal Court are to be read as references to the High Court,

(ii) references to an Appeal Sheriff are to be read as references to a judge of the High Court,

(iii) references to the Clerk of the Sheriff Appeal Court are to be read as reference to the Clerk of Justiciary.]

(4) For the purposes of this section “person” includes a person who is deceased.

Textual Amendments

F1418 S. 194B title substituted (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 96(3), 117(2); S.S.I. 2016/426, art. 2, sch.

F1419 Words in s. 194B(1) inserted (1.4.1999) by S.I. 1999/1181, art. 3(a)

F1420 Words in s. 194B(1) inserted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 121(2), 138(2); S.S.I. 2015/247, art. 2, sch.

F1421 Words in s. 194B(1) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 96(2), 117(2); S.S.I. 2016/426, art. 2, sch.

F1422 Words in s. 194B(1) inserted (1.4.1999) by S.I. 1999/1181, art. 3(b)

F1423 S. 194B(3A) inserted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 121(3), 138(2); S.S.I. 2015/247, art. 2, sch.

194C Grounds for reference. S

[F1424 (1)] The grounds upon which the Commission may refer a case to the High Court are that they believe—

(a) that a miscarriage of justice may have occurred; and

(b) that it is in the interests of justice that a reference should be made.

F1425 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1424 S. 194C renumbered as s. 194C(1) (30.10.2010) by Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (asp 15), ss. 7(3)(a), 9

F1425 S. 194C(2) repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 96(4), 117(2); S.S.I. 2016/426, art. 2, sch.

F1426 194D Further provision as to references. S

(1) A reference of a conviction, sentence or finding may be made under section 194B of this Act whether or not an application has been made by or on behalf of the person to whom it relates.

(2) In considering whether to make a reference the Commission shall have regard to—

(a) any application or representations made to the Commission by or on behalf of the person to whom it relates;

(b) any other representations made to the Commission in relation to it: and

(c) any other matters which appear to the Commission to be relevant.

(3) In considering whether to make a reference the Commission may at any time refer to the High Court for the Court’s opinion any point on which they desire the Court’s assistance; and on a reference under this subsection the High Court shall consider the point referred and furnish the Commission with their opinion on the point.

(4) Where the Commission make a reference to the High Court under section 194B of this Act they shall—

(a) give to the Court a statement of their reasons for making the reference; and

(b) send a copy of the statement to every person who appears to them to be likely to be a party to any proceedings on the appeal arising from the reference.

[F1427 (4A) The grounds for an appeal arising from a reference to the High Court under section 194B of this Act must relate to one or more of the reasons for making the reference contained in the Commission's statement of reasons.

(4B) Despite subsection (4A), the High Court may, if it considers it is in the interests of justice to do so, grant leave for the appellant to found the appeal on additional grounds.

(4C) An application by the appellant for leave under subsection (4B) must be made and intimated to the Crown Agent within 21 days after the date on which a copy of the Commission's statement of reasons is sent under subsection (4)(b).

(4D) The High Court may, on cause shown, extend the period of 21 days mentioned in subsection (4C).

(4E) The Clerk of Justiciary must intimate to the persons mentioned in subsection (4F)—

(a) a decision under subsection (4B), and

(b) in the case of a refusal to grant leave for the appeal to be founded on additional grounds, the reasons for the decision.

(4F) Those persons are—

(a) the appellant or the appellant's solicitor, and

(b) the Crown Agent.]

(5) In every case in which—

(a) an application has been made to the Commission by or on behalf of any person for the reference by them of any conviction, sentence or finding; but

(b) the Commission decide not to make a reference of the conviction, sentence or finding,

they shall give a statement of the reasons for their decision to the person who made the application.

Textual Amendments

F1426 S. 194D inserted (1.4.1999) by 1997 c. 48, s. 25(1); S.I. 1999/652, art. 2, Sch. (subject to art. 3)

F1427 S. 194D(4A)-(4F) inserted (5.11.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 83, 206(1); S.S.I. 2010/385, art. 2 (with arts. 3, 4)

F1428 194DA High Court's power to reject a reference made by the Commission S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1428 S. 194DA repealed (17.1.2017) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 96(5), 117(2); S.S.I. 2016/426, art. 2, sch.

F1429 194E Extension of Commission’s remit to summary cases. S

(1) The Secretary of State may by order provide for this Part of this Act to apply in relation to convictions, sentences and findings made in summary proceedings as they apply in relation to convictions, sentences and findings made in solemn proceedings, and may for that purpose make in such an order such amendments to the provisions of this Part as appear to him to be necessary or expedient.

(2) An order under this section shall be made by statutory instrument, and shall not have effect unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

Textual Amendments

F1429 S. 194E inserted (1.1.1998) by 1997 c. 48, s. 25(1); S.I. 1997/3004, art. 2, Sch.

F1430 194F Further powers. S

The Commission may take any steps which they consider appropriate for assisting them in the exercise of any of their functions and may, in particular—

(a) themselves undertake inquiries and obtain statements, opinions or reports; or

(b) request the Lord Advocate or any other person to undertake such inquiries or obtain such statements, opinions and reports.

Textual Amendments

F1430 S. 194F inserted (1.4.1999) by 1997 c. 48, s. 25(1); S.I. 1999/652, art. 2, Sch. (subject to art. 3)

F1431 194G Supplementary provision. S

(1) The Secretary of State may by order make such incidental, consequential, transitional or supplementary provisions as may appear to him to be necessary or expedient for the purpose of bringing this Part of this Act into operation, and, without prejudice to the generality of the foregoing, of dealing with any cases being considered by him under section 124 of this Act at the time when this Part comes into force, and an order under this section may make different provision in relation to different cases or classes of case.

(2) An order under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments

F1431 S. 194G inserted (1.1.1998) by 1997 c. 48, s. 25(1); S.I. 1997/3004, art. 2, Sch.

Powers of investigation of Commission S

F1432 194H Power to request precognition on oath. S

(1) Where it appears to the Commission that a person may have information which they require for the purposes of carrying out their functions, and the person refuses to make any statement to them, they may apply to the sheriff under this section.

(2) On an application made by the Commission under this section, the sheriff may, if he is satisfied that it is reasonable in the circumstances, grant warrant to cite the person concerned to appear before the sheriff in chambers at such time or place as shall be specified in the citation, for precognition on oath by a member of the Commission or a person appointed by them to act in that regard.

(3) Any person who, having been duly cited to attend for precognition under subsection (2) above and having been given at least 48 hours notice, fails without reasonable excuse to attend shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 21 days; and the court may issue a warrant for the apprehension of the person concerned ordering him to be brought before a sheriff for precognition on oath.

(4) Any person who, having been duly cited to attend for precognition under subsection (2) above, attends but—

(a) refuses to give information within his knowledge or to produce evidence in his possession; or

(b) prevaricates in his evidence,

shall be guilty of an offence and shall be liable to be summarily subjected to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 21 days.

Textual Amendments

F1432 S. 194H inserted (1.4.1999) by 1997 c. 48, s. 25(1); S.I. 1999/652, art. 2, Sch. (subject to art. 3)

F1433 194I Power to obtain documents etc. S

(1) Where the Commission believe that a person or a public body has possession or control of a document or other material which may assist them in the exercise of any of their functions, they may apply to the High Court for an order requiring that person or body—

(a) to produce the document or other material to the Commission or to give the Commission access to it; and

(b) to allow the Commission to take away the document or other material or to make and take away a copy of it in such form as they think appropriate,

and such an order may direct that the document or other material must not be destroyed, damaged or altered before the direction is withdrawn by the Court.

(2) The duty to comply with an order under this section is not affected by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by or by virtue of any enactment) which would otherwise prevent the production of the document or other material to the Commission or the giving of access to it to the Commission.

(3) The documents and other material covered by this section include, in particular, any document or other material obtained or created during any investigation or proceedings relating to—

(a) the case in relation to which the Commission’s function is being or may be exercised; or

(b) any other case which may be in any way connected with that case (whether or not any function of the Commission could be exercised in relation to that other case).

(4) In this section—

• “Minister” means a Minister of the Crown as defined by section 8 of the Ministers of the Crown Act 1975;

• F1434 ...

• “public body” means

  (a)

  [F1435 the Police Service of Scotland;]

  (b)

  any government department, local authority or other body constituted for the purposes of the public service, local government or the administration of justice; or

  (c)

  any other body whose members are appointed by Her Majesty, any Minister [F1436 , the Scottish Ministers] or any government department or whose revenues consist wholly or mainly of money provided by Parliament.

Textual Amendments

F1433 S. 194I inserted (1.4.1999) by 1997 c. 48, s. 25(1); S.I. 1999/652, art. 2, Sch. (subject to art. 3)

F1434 Definition in s. 194I(4) repealed (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 8 Pt. 1; S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F1435 Words in s. 194I(4) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(9); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F1436 Words in s. 194I(4) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. 1 para. 122(2); S.I. 1998/3178, art. 3

[F1437 194IA Power to request assistance in obtaining information abroad S

(1) Where it appears to the Commission that there may be information which they require for the purposes of carrying out their functions, and the information is outside the United Kingdom, they may apply to the High Court to request assistance.

(2) On an application made by the Commission under subsection (1), the High Court may request assistance if satisfied that it is reasonable in the circumstances.

(3) In this section, “request assistance” means request assistance in obtaining outside the United Kingdom any information specified in the request for use by the Commission for the purposes of carrying out their functions.

(4) Section 8 of the Crime (International Co-operation) Act 2003 (c.32) (sending requests for assistance) applies to requests for assistance under this section as it applies to requests for assistance under section 7 of that Act.

(5) Subsections (2), (3) and (6) of section 9 of that Act (use of evidence obtained) apply to information obtained pursuant to a request for assistance under this section as they apply under subsection (1) of that section to evidence obtained pursuant to a request for assistance under section 7 of that Act.]

Textual Amendments

F1437 S. 194IA inserted (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 105, 206(1); S.S.I. 2010/413, art. 2, Sch.

Disclosure of information S

F1438 194J Offence of disclosure. S

(1) A person who is or has been a member or employee of the Commission shall not disclose any information obtained by the Commission in the exercise of any of their functions unless the disclosure of the information is excepted from this section by section 194K [F1439 or 194M] of this Act.

(2) A member of the Commission shall not authorise the disclosure by an employee of the Commission of any information obtained by the Commission in the exercise of any of their functions unless the authorisation of the disclosure of the information is excepted from this section by section 194K [F1440 or 194M] of this Act.

(3) A person who contravenes this section is guilty of an offence and liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale.

Textual Amendments

F1438 S. 194J inserted (1.4.1999) by 1997 c. 48, s. 25(1); S.I. 1999/652, art. 2, Sch. (subject to art. 3)

F1439 Words in s. 194J(1) inserted (24.9.2012) by Criminal Cases (Punishment and Review) (Scotland) Act 2012 (asp 7), ss. 3(2), 5(2); S.S.I. 2012/249, art. 2

F1440 Words in s. 194J(2) inserted (24.9.2012) by Criminal Cases (Punishment and Review) (Scotland) Act 2012 (asp 7), ss. 3(2), 5(2); S.S.I. 2012/249, art. 2

F1441 194K Exceptions from obligations of non-disclosure. S

(1) The disclosure of information, or the authorisation of the disclosure of information, is excepted from section 194J of this Act by this section if the information is disclosed, or is authorised to be disclosed—

(a) for the purposes of any criminal, disciplinary or civil proceedings;

(b) in order to assist in dealing with an application made to the Secretary of State for compensation for a miscarriage of justice;

(c) by a person who is a member or an employee of the Commission to another person who is a member or an employee of the Commission;

(d) in any statement or report required by this Act;

(e) in or in connection with the exercise of any function under this Act; or

(f) in any circumstances in which the disclosure of information is permitted by an order made by the Secretary of State.

(2) The disclosure of information is also excepted from section 194J of this Act by this section if the information is disclosed by an employee of the Commission who is authorised to disclose the information by a member of the Commission.

(3) The disclosure of information, or the authorisation of the disclosure of information, is also excepted from section 194J of this Act by this section if the information is disclosed, or is authorised to be disclosed, for the purposes of—

(a) the investigation of an offence; or

(b) deciding whether to prosecute a person for an offence,

unless the disclosure is or would be prevented by an obligation or other limitation on disclosure (including any such obligation or limitation imposed by, under or by virtue of any enactment) arising otherwise than under that section.

(4) Where the disclosure of information is excepted from section 194J of this Act by subsection (1) or (2) above, the disclosure of the information is not prevented by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by, under or by virtue of any enactment) arising otherwise than under that section.

(5) The power to make an order under subsection (1)(f) above is exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments

F1441 S. 194K inserted (1.4.1999) by 1997 c. 48, s. 25(1); S.I. 1999/652, art. 2, Sch. (subject to art. 3)

[F1442 194L Consent to disclosure. S

(1) Where a person or body is required by an order under section 194I of this Act to produce or allow access to a document or other material to the Commission and notifies them that any information contained in the document or other material to which the order relates is not to be disclosed by the Commission without his or its prior consent, the Commission shall not disclose the information without such consent.

(2) Such consent may not be withheld unless—

(a) (apart from section 194I of this Act) the person would have been prevented by any obligation of secrecy or other limitation on disclosure from disclosing the information without such consent; and

(b) it is reasonable for the person to withhold his consent to disclosure of the information by the Commission.

(3) An obligation of secrecy or other limitation on disclosure which applies to a person only where disclosure is not authorised by another person shall not be taken for the purposes of subsection (2)(a) above to prevent the disclosure by the person of information to the Commission unless—

(a) reasonable steps have been taken to obtain the authorisation of the other person; or

(b) such authorisation could not reasonably be expected to be obtained.]]

Textual Amendments

F1442 S. 194L inserted (1.4.1999) by 1997 c. 48, s. 25(1); S.I. 1999/652, art. 2, Sch. (subject to art. 3)

[F1443 Special circumstances for disclosure S

Textual Amendments

F1443 Ss. 194M-194T and cross-heading inserted (24.9.2012) by Criminal Cases (Punishment and Review) (Scotland) Act 2012 (asp 7), ss. 3(3), 5(2); S.S.I. 2012/249, art. 2

194M Further exception to section 194J S

(1) The disclosure of information, or the authorisation of disclosure of information, is excepted from section 194J by this section if—

(a) the conditions specified in subsection (2) are met, and

(b) the Commission have determined that it is appropriate in the whole circumstances for the information to be disclosed.

(2) The conditions are that—

(a) the information relates to a case that has been referred to the High Court under section 194B(1),

(b) the reference concerns—

(i) a conviction, or

(ii) a finding under section 55(2), and

(c) the case has fallen, or has been abandoned, under the provisions or other rules applying by virtue of section 194B(1).

194N Effect of the exception S

(1) Where the disclosure of information is excepted from section 194J by section 194M, the disclosure of the information is not prevented by any obligation of confidentiality or other limitation on disclosure arising otherwise than under section 194J.

(2) For the purpose of subsection (1), such an obligation or limitation does not include one imposed—

(a) by, under or by virtue of any enactment, or

(b) by any interdict or other court order applying in connection with this section.

194O Notification and representations etc. S

(1) When considering for the purpose of section 194M(1) the question of whether it is appropriate for the information to be disclosed, the Commission have the following duties.

(2) The Commission must—

(a) so far as practicable, take reasonable measures to—

(i) notify each of the affected persons of the possibility that the information may be disclosed, and

(ii) seek the views of each of them on the question, and

(b) to such extent (and in such manner) as they think fit, consult the other interested persons.

(3) The Commission must—

(a) allow the prescribed period for each of the affected and other interested persons involved to take steps (including legal action) in their own favour in relation to the question, and

(b) have regard to any material representations made to them on the question by any of those affected and other interested persons within the prescribed period.

(4) The Commission must have regard to any other factors that they believe to be significant in relation to the question.

(5) In subsections (2) and (3)—

(a) the references to the affected persons are to the persons—

(i) to whom the information directly relates, or

(ii) from whom the information was obtained, whether directly or indirectly,

(b) the references to the other interested persons are to (so far as not among the affected persons)—

(i) the Lord Advocate, and

(ii) such additional persons (if any) as appear to the Commission to have a substantial interest in the question.

(6) In subsection (3), the references to the prescribed period in relation to a particular person are to—

(a) the period of 6 weeks, or

(b) such longer period as the Commission may set,

starting with the date on which the notification was sent to, or (as the case may be) consultation was initiated with respect to, the person.

(7) Subsections (3) and (6) are inapplicable in relation to a particular person if the Commission cannot reasonably ascertain the person's whereabouts.

194P Consent if UK interest S

(1) Unless subsection (3) is complied with, section 194M(1) is of no effect in relation to any information falling within subsection (2).

(2) Information falls within this subsection if it—

(a) is held by the Commission, and

(b) at any time, has been supplied by the UK Government under arrangements of any kind.

(3) This subsection is complied with if, at any time, the UK Government has in connection with section 194M(1) given its consent to disclosure of the information.

(4) In this section, “the UK Government” means a Minister of the Crown or a department of the Government of the United Kingdom.

194Q Consent if foreign interest S

(1) Unless subsection (3) is complied with, section 194M(1) is of no effect in relation to any information falling within subsection (2).

(2) Information falls within this subsection if it—

(a) is held by the Commission, and

(b) at any time, has been supplied by a designated foreign authority under arrangements of any kind.

(3) This subsection is complied with if the designated foreign authority has in connection with section 194M(1) given its consent to disclosure of the information, by virtue of—

(a) the arrangements concerned, or

(b) subsection (4).

(4) Where not previously given by virtue of those arrangements, it is for the Commission to seek the designated foreign authority's consent to disclosure of the information.

(5) Subsection (1) does not apply if the information also falls within section 194P(2).

194R Designated foreign authority S

(1) The references in section 194Q to a designated foreign authority are to a current or previous authority of a prosecutorial, judicial or other character which is or was located within a country or territory outwith the United Kingdom.

(2) But, if in connection with subsection (4) of that section—

(a) the Commission cannot reasonably identify or find the particular authority in question, or

(b) they are unsuccessful in their reasonable attempts to communicate with it,

the references in subsections (3) and (4) of that section to the designated foreign authority are to be read as if they were to the relevant foreign government.

(3) In the application of subsection (2), paragraph (a) of subsection (3) of that section is to be ignored.

(4) In subsection (2)—

(a) the references to the Commission include their acting with the Lord Advocate's help,

(b) the reference to the relevant foreign government—

(i) is to the government of the other country or territory,

(ii) in the event of doubt as to the status or operation of a governmental system in the other country or territory, is to be regarded as being to the body described in subsection (5).

(5) That is, the principal body in it (for the time being (if any)) that is recognised by the Government of the United Kingdom as having responsibility for exercising governmental control centrally.

194S Disapplication of sections 194O to 194R S

(1) Sections 194O to 194R cease to have effect if subsection (2) prevails.

(2) This subsection prevails where, on their preliminary examination of the question to which section 194O(1) relates, the Commission determine for the purpose of section 194M(1) that it is manifestly inappropriate for the information to be disclosed.

(3) But—

(a) if there is a material change in any significant factor on which the determination depended, it is open to the Commission to re-examine the question (and this is to be regarded as another preliminary examination of the question),

(b) where they choose to re-examine the question, the effect of sections 194O to 194R is restored unless subsection (2) again prevails.

194T Final disclosure-related matters S

(1) If the Commission decide in pursuance of section 194M(1) to disclose the information—

(a) subsection (2) applies initially, and

(b) subsection (3) applies subsequently.

(2) Before disclosing the information, the Commission must—

(a) so far as practicable, take reasonable measures to notify of the decision—

(i) each of the affected persons, and

(ii) to the same extent as they were consulted under section 194O(2)(b), the other interested persons, and

(b) allow the prescribed period for each of the affected and other interested persons involved to take steps (including legal action) in their own favour in relation to the decision.

(3) In disclosing the information, the Commission must—

(a) explain the context in which the information is being disclosed by them (including by describing the background to the case), and

(b) where (for any reason) other information relating to the case remains undisclosed by them, explicitly state that fact,

and do so along with the material by which the disclosure is made.

(4) In subsection (2), the references to the affected and other interested persons are to be construed in accordance with section 194O(5).

(5) In subsection (2)(b), the reference to the prescribed period in relation to a particular person is to—

(a) the period of 6 weeks, or

(b) such longer period as the Commission may set,

starting with the date on which the notification was sent to the person.

(6) Subsections (2)(b) and (5) are inapplicable in relation to a particular person if the Commission cannot reasonably ascertain the person's whereabouts.

(7) In subsection (3)(b), the reference to other information is to any other information obtained by the Commission in the exercise of their functions.]

PART XI U.K. Sentencing

General S

195 Remit to High Court for sentence. S

(1) Where at any diet in proceedings on indictment in the sheriff court, sentence falls to be imposed but the sheriff holds that any competent sentence which he can impose is inadequate [F1444 or it appears to him that the criteria mentioned in section 210E of this Act (that is to say, the risk criteria) may be met] so that [F1445 , in either case,] the question of sentence is appropriate for the High Court, he shall—

(a) endorse upon the record copy of the indictment a certificate of the plea or the verdict, as the case may be;

(b) by interlocutor written on the record copy remit the convicted person to the High Court for sentence; and

(c) append to the interlocutor a note of his reasons for the remit,

and a remit under this section shall be sufficient warrant to bring the accused before the High Court for sentence and shall remain in force until the person is sentenced.

(2) Where under any enactment an offence is punishable on conviction on indictment by imprisonment for a term exceeding [F1446 five years] but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding [F1446 five years], it shall be competent for the sheriff to remit the accused to the High Court for sentence under subsection (1) above; and it shall be competent for the High Court to pass any sentence which it could have passed if the person had been convicted before it.

(3) When the Clerk of Justiciary receives the record copy of the indictment he shall send a copy of the note of reasons to the convicted person or his solicitor and to the Crown Agent.

(4) Subject to subsection (3) above, the note of reasons shall be available only to the High Court and the parties.

Textual Amendments

F1444 Words in s. 195(1) inserted (19.6.2006 for certain purposes and otherwise prosp.) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 1(2), 89, Sch. 1 para. 2(5)(a): S.S.I. 2006/332, art. 2

F1445 Words in s. 195(1) inserted (19.6.2006 for certain purposes and otherwise prosp.) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 1(2), 89, Sch. 1 para. 2(5)(b); S.S.I. 2006/332, art. 2

F1446 Words in s. 195(2) substituted (1.5.2004) by 1997 c. 48, ss. 13(3), 65(2); S.S.I. 2004/176, art. 2

196 Sentence following guilty plea. S

[F1447 (1)] In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pled guilty to an offence, a court [F1448 shall] take into account—

(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and

(b) the circumstances in which that indication was given.

[F1449 (1A) In passing sentence on an offender referred to in subsection (1) above, the court shall—

(a) state whether, having taken account of the matters mentioned in paragraphs (a) and (b) of that subsection, the sentence imposed in respect of the offence is different from that which the court would otherwise have imposed; and

(b) if it is not, state reasons why it is not.]

[F1450 (1B) Subsection (1C) applies where—

(a) the court is making an order for lifelong restriction to which section 205ZB applies in respect of an offender or imposing on an offender—

(i) a serious terrorism sentence of imprisonment under section 205ZA(2),

(ii) a serious terrorism sentence of detention under section 205ZA(6),

(iii) a sentence of imprisonment for life to which section 205ZB applies, or

(iv) a sentence of detention for life to which section 205ZB applies, and

(b) the offender has pled guilty to the offence for which the offender is being sentenced.

(1C) The court may, after taking into account the matters mentioned in paragraphs (a) and (b) of subsection (1), impose as the appropriate custodial term or, as the case may be, specify as the punishment part, a term of any length which is not less than 80 per cent of the term which would otherwise be required.]

[F1451 (2) Where the court is passing sentence on an offender under section 205B(2) of this Act and that offender has pled guilty to the offence for which he is being so sentenced, the court may, after taking into account the matters mentioned in paragraphs (a) and (b) of subsection (1) above, pass a sentence of less than seven years imprisonment or, as the case may be, detention but any such sentence shall not be of a term of imprisonment or period of detention of less than five years, two hundred and nineteen days.]

Textual Amendments

F1447 S. 196 renumbered as s. 196(1) (20.10.1997) by 1997 c. 48, s. 2(2)(a); S.I. 1997/2323, art. 3, Sch. 1

F1448 Word in s. 196(1) substituted (4.10.2004) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 20(2), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to savings in arts. 3-5)

F1449 S. 196(1A) inserted (4.10.2004) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 20(3), 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to savings in arts. 3-5)

F1450 S. 196(1B)(1C) inserted (29.6.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), ss. 9, 50(2)(e)

F1451 S. 196(2) inserted (20.10.1997) by 1997 c. 48, s. 2(2)(b); S.I. 1997/2323, art. 3, Sch. 1

197 Sentencing guidelines. S

Without prejudice to any rule of law, a court in passing sentence shall have regard to any relevant opinion pronounced under section 118(7) or section 189(7) of this Act.

198 Form of sentence. S

(1) In any case the sentence to be pronounced shall be announced by the judge in open court and shall be entered in the record in the form prescribed by Act of Adjournal.

(2) In recording a sentence of imprisonment, it shall be sufficient to minute the term of imprisonment to which the court sentenced the accused, without specifying the prison in which the sentence is to be carried out; and an entry of sentence, signed by the clerk of court, shall be full warrant and authority for any subsequent execution of the sentence and for the clerk to issue extracts for the purposes of execution or otherwise.

(3) In extracting a sentence of imprisonment, the extract may be in the form set out in an Act of Adjournal or as nearly as may be in such form.

199 Power to mitigate penalties. S

(1) Subject to subsection (3) below, where a person is convicted of the contravention of an enactment and the penalty which may be imposed involves—

(a) imprisonment;

(b) the imposition of a fine;

(c) the finding of caution for good behaviour or otherwise whether or not imposed in addition to imprisonment or a fine,

subsection (2) below shall apply.

(2) Where this subsection applies, the court, in addition to any other power conferred by statute, shall have power—

(a) to reduce the period of imprisonment;

(b) to substitute for imprisonment a fine (either with or without the finding of caution for good behaviour);

(c) to substitute for imprisonment or a fine the finding of caution;

(d) to reduce the amount of the fine;

(e) to dispense with the finding of caution.

(3) Subsection (2) above shall not apply—

(a) in relation to an enactment which carries into effect a treaty, convention, or agreement with a foreign state which stipulates for a fine of a minimum amount; or

(b) to proceedings taken under any Act relating to any of Her Majesty’s regular or auxiliary forces. [F1452 ; or

(c) to any proceedings in which the court on conviction is under a duty to impose a sentence under section 205A(2) or 205B(2) of this Act.]

(4) Where, in summary proceedings, a fine is imposed in substitution for imprisonment, the fine—

(a) in the case of an offence which is triable either summarily or on indictment, shall not exceed the prescribed sum; and

(b) in the case of an offence triable only summarily, shall not exceed level 4 on the standard scale.

(5) Where the finding of caution is imposed under this section—

(a) in respect of an offence which is triable only summarily, the amount shall not exceed level 4 on the standard scale and the period shall not exceed that which the court may impose under this Act; and

(b) in any other case, the amount shall not exceed the prescribed sum and the period shall not exceed 12 months.

Textual Amendments

F1452 S. 199(3)(c) and the preceding word "; or" inserted (20.10.1997 for specified purposes and otherwise prosp.) by 1997 c. 48, ss. 62(1), 65(2), Sch. 1 para. 21(23); S.I. 1997/2323, art. 3, Sch. 1

Modifications etc. (not altering text)

C296 S. 199(2)(b) excluded (1.12.2010) by Sexual Offences (Scotland) Act 2009 (asp 9), ss. 48(2), 62(2); S.S.I. 2010/357, art. 2

Pre-sentencing procedure S

200 Remand for inquiry into physical or mental condition. S

(1) Without prejudice to any powers exercisable by a court under section 201 of this Act, where—

(a) the court finds that an accused has committed an offence punishable with imprisonment; and

(b) it appears to the court that before the method of dealing with him is determined an inquiry ought to be made into his physical or mental condition,

subsection (2) below shall apply.

(2) Where this subsection applies the court shall—

(a) for the purpose of inquiry solely into his physical condition, remand him in custody or on bail;

(b) for the purpose of inquiry into his mental condition (whether or not in addition to his physical condition), remand him in custody or on bail or, where the court is satisfied—

(i) on the written or oral evidence of a medical practitioner, that the person appears to be suffering from a mental disorder; and

[F1453 (ii) that the accused could be admitted to a hospital that is suitable for his detention,]

make an order committing him to that hospital,

for such period or periods, no single period exceeding three weeks, as the court thinks necessary to enable a medical examination and report to be made.

(3) Where the court is of the opinion that a person ought to continue to be committed to hospital for the purpose of inquiry into his mental condition following the expiry of the period specified in an order for committal to hospital under paragraph (b) of subsection (2) above, the court may—

(a) if the condition in sub-paragraph (i) of that paragraph continues to be satisfied and [F1454 he could be admitted to a hospital that is suitable] for his continued detention, renew the order for such further period not exceeding three weeks as the court thinks necessary to enable a medical examination and report to be made; and

(b) in any other case, remand the person in custody or on bail in accordance with subsection (2) above.

(4) An order under subsection (3)(a) above may, unless objection is made by or on behalf of the person to whom it relates, be made in his absence.

(5) Where, before the expiry of the period specified in an order for committal to hospital under subsection (2)(b) above, the court considers, on an application made to it, that committal to hospital is no longer required in relation to the person, the court shall revoke the order and may make such other order, under subsection (2)(a) above or any other provision of this Part of this Act, as the court considers appropriate.

(6) Where an accused is remanded on bail under this section, it shall be a condition of the order granting bail that he shall—

(a) undergo a medical examination by a duly qualified registered medical practitioner or, where the inquiry is into his mental condition, and the order granting bail so specifies, two such practitioners; and

(b) for the purpose of such examination, attend at an institution or place, or on any such practitioner specified in the order granting bail and, where the inquiry is into his mental condition, comply with any directions which may be given to him for the said purpose by any person so specified or by a person of any class so specified,

and, if arrangements have been made for his reception, it may be a condition of the order granting bail that the person shall, for the purpose of the examination, reside in an institution or place specified as aforesaid, not being an institution or place to which he could have been remanded in custody, until the expiry of such period as may be so specified or until he is discharged therefrom, whichever first occurs.

(7) On exercising the powers conferred by this section to remand in custody or on bail the court shall—

(a) where the person is remanded in custody, send to the institution or place in which he is detained; and

(b) where the person is released on bail, send to the institution or place at which or the person by whom he is to be examined,

a statement of the reasons for which it appears to the court that an inquiry ought to be made into his physical or mental condition, and of any information before the court about his physical or mental condition.

(8) On making an order of committal to hospital under subsection (2)(b) above the court shall send to the hospital specified in the order a statement of the reasons for which the court is of the opinion that an inquiry ought to be made into the mental condition of the person to whom it relates, and of any information before the court about his mental condition.

(9) A person remanded under this section may [F1455 , before the expiry of the period of 24 hours beginning with his remand,] appeal [F1456 to the [F1457 appropriate Appeal Court] by note of appeal] against the refusal of bail or against the conditions imposed and a person committed to hospital under this section may [F1458 , at any time during the period when the order for his committal, or, as the case may be, renewal of such order, is in force,] appeal [F1456 to the [F1457 appropriate Appeal Court] by note of appeal] against the order of committal F1459 . . . F1460 . . . , and the [F1457 appropriate Appeal Court], either in court or in chambers, may after hearing parties—

(a) review the order and grant bail on such conditions as it thinks fit; or

(b) confirm the order; or

(c) in the case of an appeal against an order of committal to hospital, revoke the order and remand the person in custody.

[F1461 (9A) A note of appeal under subsection (9) above is to be—

(a) lodged with the clerk of the court from which the appeal is to be taken; and

(b) sent without delay by that clerk (where not the [F1462 clerk of the appropriate Appeal Court]) to the [F1462 clerk of the appropriate Appeal Court].]

(10) The court may, on cause shown, vary an order for committal to hospital under subsection (2)(b) above by substituting another hospital for the hospital specified in the order.

(11) Subsection (2)(b) above shall apply to the variation of an order under subsection (10) above as it applies to the making of an order for committal to hospital.

[F1463 (12) In this section—

• “appropriate Appeal Court” means—

  (a)

  in the case of an appeal under subsection (9) against a decision of the High Court, that Court;

  (b)

  in the case of an appeal under subsection (9) against a decision of a sheriff (whether in solemn or summary proceedings) or a JP court, the Sheriff Appeal Court; and

• “the clerk of the appropriate Appeal Court” means—

  (a)

  in a case where the High Court is the appropriate Appeal Court, the Clerk of Justiciary;

  (b)

  in a case where the Sheriff Appeal Court is the appropriate Appeal Court, the Clerk of that Court.]

Textual Amendments

F1453 S. 200(2)(b)(ii) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(2)-(4), Sch. 4 para. 8(13)(a); S.S.I. 2005/161, art. 3

F1454 Words in s. 200(3)(a) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331(1), 333(2)-(4), Sch. 4 para. 8(13)(b); S.S.I. 2005/161, art. 3

F1455 Words in s. 200(9) inserted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 132(a), 333(2)-(4); S.S.I. 2005/161, art. 3

F1456 Words in s. 200(9) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 6(4)(a)(i), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1457 Words in s. 200(9) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(6)(a) (with art. 4)

F1458 Words in s. 200(9) inserted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 132(b), 333(2)-(4); S.S.I. 2005/161, art. 3

F1459 Words in s. 200(9) repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 132(c), 331(2), 333(2)-(4), Sch. 5; S.S.I. 2005/161, art. 3

F1460 Words in s. 200(9) repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 6(4)(a)(ii), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1461 S. 200(9A) added (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 6(4)(b), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1462 Words in s. 200(9A)(b) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(6)(b) (with art. 4)

F1463 S. 200(12) inserted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(6)(c) (with art. 4)

201 Power of court to adjourn case before sentence. S

(1) Where an accused has been convicted or the court has found that he committed the offence and before he has been sentenced or otherwise dealt with, subject to subsection (3) below, the court may adjourn the case for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with his case.

(2) Where the court adjourns a case solely for the purpose mentioned in subsection (1) above, it shall remand the accused in custody or on bail or ordain him to appear at the adjourned diet.

(3) [F1464 Subject to section 21(9) of the Criminal Justice (Scotland) Act 2003 (asp 7),] a court shall not adjourn the hearing of a case as mentioned in subsection (1) above for any single period [F1465 exceeding four weeks or, on cause shown, eight weeks.]

(4) An accused who is remanded under this section may appeal [F1466 to the [F1467 appropriate Appeal Court]] against the refusal of bail or against the conditions imposed within 24 hours of his remand, by note of appeal F1468 . . . , and the [F1467 appropriate Appeal Court], either in court or in chambers, may F1469 . . . —

(a) review the order appealed against and either grant bail on such conditions as it thinks fit or ordain the accused to appear at the adjourned diet; or

(b) confirm the order.

[F1470 (5) A note of appeal under subsection (4) above is to be—

(a) lodged with the clerk of the court from which the appeal is to be taken; and

(b) sent without delay by that clerk (where not the [F1471 clerk of the appropriate Appeal Court]) to the [F1471 clerk of the appropriate Appeal Court].]

[F1472 (6) In this section—

• “appropriate Appeal Court” means—

  (a)

  in the case of an appeal under subsection (4) against a decision of the High Court, that Court;

  (b)

  in the case of an appeal under subsection (4) against a decision of a sheriff (whether in solemn or summary proceedings) or a JP court, the Sheriff Appeal Court; and

• “the clerk of the appropriate Appeal Court” means—

  (a)

  in a case where the High Court is the appropriate Appeal Court, the Clerk of Justiciary;

  (b)

  in a case where the Sheriff Appeal Court is the appropriate Appeal Court, the Clerk of that Court.]

Textual Amendments

F1464 Words in s. 201(3) inserted (10.6.2004) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 21(10), 89; S.S.I. 2004/240, art. 2

F1465 Words in s. 201(3) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 67, 89; S.S.I. 2003/288, art. 2, Sch.

F1466 Words in s. 201(4) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 6(5)(a)(i), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1467 Words in s. 201(4) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(7)(a) (with art. 4)

F1468 Words in s. 201(4) repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 6(5)(a)(ii), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1469 Words in s. 201(4) repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 18(4); S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1470 S. 201(5) added (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 6(5)(b), 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1471 Words in s. 201(5)(b) substituted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(7)(b) (with art. 4)

F1472 S. 201(6) inserted (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 (S.S.I. 2015/338), art. 1, sch. 2 para. 5(7)(c) (with art. 4)

Modifications etc. (not altering text)

C297 S. 201(3) modified (10.6.2004) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 21(9), 89; S.S.I. 2004/240, art. 2

202 Deferred sentence. S

(1) It shall be competent for a court to defer sentence after conviction for a period and on such conditions as the court may determine.

(2) If it appears to the court which deferred sentence on an accused under subsection (1) above that he has been convicted during the period of deferment, by a court in any part of [F1473 the United Kingdom or [F1474 , where the court which deferred sentence considers appropriate, by a court in any] member State of the European Union] of an offence committed during that period and has been dealt with for that offence, the court which deferred sentence may—

(a) issue a warrant for the arrest of the accused; or

(b) instead of issuing such a warrant in the first instance, issue a citation requiring him to appear before it at such time as may be specified in the citation,

and on his appearance or on his being brought before the court it may deal with him in any manner in which it would be competent for it to deal with him on the expiry of the period of deferment.

(3) Where a court which has deferred sentence on an accused under subsection (1) above convicts him of another offence during the period of deferment, it may deal with him for the original offence in any manner in which it would be competent for it to deal with him on the expiry of the period of deferment, as well as for the offence committed during the said period.

Textual Amendments

F1473 Words in s. 202(2) substituted (13.12.2010 for all purposes in respect of offences committed on or after this date) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 71(1), 206(1), Sch. 4 para. 4; S.S.I. 2010/413, art. 2, Sch.

F1474 Words in s. 202(2) substituted (31.12.2020) by The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 13(10) (with reg. 16)

203 Reports. S

(1) Where a person specified in section 27(1)(b)(i) to (vi) of the M21 Social Work (Scotland) Act 1968 commits an offence, the court shall not dispose of the case without obtaining from the local authority in whose area the person resides a report as to—

(a) the circumstances of the offence; and

(b) the character of the offender, including his behaviour while under the supervision, or as the case may be subject to the order, so specified in relation to him.

[F1475 (1A) However, if there is available to the court a report from a local authority—

(a) of the kind described in subsection (1)(b) above; and

(b) which was prepared in relation to the person not more than 3 months before the person was convicted of the offence,

the court need not obtain another report of that kind before disposing of the case unless it considers, following representations made by or on behalf of the person as to the person's circumstances, that it is appropriate to obtain another report.

(1B) Nothing in subsection (1) or (1A) above requires the court to obtain a report if the court is satisfied, having regard to its likely method of dealing with the case before it for disposal, that the report would not be of any material assistance.]

(2) In subsection (1) above, “the court” does not include a [F1476 JP court] .

(3) Where, in any case, a report by an officer of a local authority is made to the court with a view to assisting the court in determining the most suitable method of dealing with any person in respect of an offence, a copy of the report shall be given by the clerk of the court to

[F1477 (a) the offender,

(b) the offender's solicitor (if any), and

(c) the prosecutor.]

Textual Amendments

F1475 S. 203(1A)(1B) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 24, 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F1476 Words in s. 203(2) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 26(i); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F1477 Words in s. 203(3) substituted (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 20(2), 206(1); S.S.I. 2010/413, art. 2, Sch. (with art. 3)

Marginal Citations

M21 1968 c.49.

[F1478 203A Reports about organisations S

(1) This section applies where an organisation is convicted of an offence.

(2) Before dealing with the organisation in respect of the offence, the court may obtain a report into the organisation's financial affairs and structural arrangements.

(3) The report is to be prepared by a person appointed by the court.

(4) The person appointed to prepare the report is referred to in this section as the “reporter”.

(5) The court may issue directions to the reporter about—

(a) the information to be contained in the report,

(b) the particular matters to be covered by the report,

(c) the time by which the report is to be submitted to the court.

(6) The court may order the organisation to give the reporter and any person acting on the reporter's behalf—

(a) access at all reasonable times to the organisation's books, documents and other records,

(b) such information or explanation as the reporter thinks necessary.

(7) The reporter's costs in preparing the report are to be paid by the clerk of court, but the court may order the organisation to reimburse to the clerk all or a part of those costs.

(8) An order under subsection (7) may be enforced by civil diligence as if it were a fine.

(9) On submission of the report to the court, the clerk of court must provide a copy of the report to—

(a) the organisation,

(b) the organisation's solicitor (if any), and

(c) the prosecutor.

(10) The court must have regard to the report in deciding how to deal with the organisation in respect of the offence.

(11) If the court decides to impose a fine, the court must, in determining the amount of the fine, have regard to—

(a) the report, and

(b) if the court makes an order under subsection (7), the amount of costs that the organisation is required to reimburse under the order.

(12) Where the court—

(a) makes an order under subsection (7), and

(b) imposes a fine on the organisation,

any payment by the organisation is first to be applied in satisfaction of the order under subsection (7).

(13) Where the court also makes a compensation order in respect of the offence, any payment by the organisation is first to be applied in satisfaction of the compensation order before being applied in accordance with subsection (12).]

Textual Amendments

F1478 S. 203A inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 22, 206(1); S.S.I. 2011/178, art. 2, sch.

Imprisonment, etc. E+W+S

204 Restrictions on passing sentence of imprisonment or detention. S

(1) A court shall not pass a sentence of imprisonment or of detention in respect of any offence, nor impose imprisonment, or detention, under section 214(2) of this Act in respect of failure to pay a fine, on an accused who is not legally represented in that court and has not been previously sentenced to imprisonment or detention by a court in any part of the United Kingdom [F1479 or [F1480 or, where the court passing sentence considers appropriate, by a court in any] member State of the European Union], unless the accused either—

(a) applied for legal aid and the application was refused on the ground that he was not financially eligible; or

(b) having been informed of his right to apply for legal aid, and having had the opportunity, failed to do so.

(2) A court shall not pass a sentence of imprisonment on a person of or over twenty-one years of age who has not been previously sentenced to imprisonment or detention by a court in any part of the United Kingdom [F1479 or [F1481 or, where the court passing sentence considers appropriate, by a court in any] member State of the European Union] unless the court considers that no other method of dealing with him is appropriate; F1482 . . ..

[F1483 (2A) For the purpose of determining under subsection (2) above whether any other method of dealing with such a person is appropriate, the court [F1484 , unless it has made a risk assessment order in respect of the person,] shall take into account—

(a) such information as it has been able to obtain from an officer of a local authority or otherwise about his circumstances;

(b) any information before it concerning his character and mental and physical condition;

(c) its power to make a hospital direction in addition to imposing a sentence of imprisonment.]

(3) Where a court of summary jurisdiction passes a sentence of imprisonment on any such person as is mentioned in subsection (2) above, the court shall state the reason for its opinion that no other method of dealing with him is appropriate, and shall have that reason entered in the record of the proceedings.

[F1485 (3A) A court must not pass a sentence of imprisonment for a term of [F1486 12] months or less on a person unless the court considers that no other method of dealing with the person is appropriate.

(3B) Where a court passes such a sentence, the court must—

(a) state its reasons for the opinion that no other method of dealing with the person is appropriate, and

(b) have those reasons entered in the record of the proceedings.

(3C) The Scottish Ministers may by order made by statutory instrument substitute for the number of months for the time being specified in subsection (3A) another number of months.

(3D) An order under subsection (3C) is not to be made unless a draft of the statutory instrument containing the order has been laid before and approved by resolution of the Scottish Parliament.]

[F1487 (3E) A modification of the number of months specified in subsection (3A), by an order made under subsection (3C), applies only to offences committed on or after the date on which the modification comes into force.]

(4) The court shall, for the purpose of determining whether a person has been previously sentenced to imprisonment or detention by a court in any part of the United Kingdom—

(a) disregard a previous sentence of imprisonment which, having been suspended, has not taken effect under section 23 of the M22 Powers of Criminal Courts Act 1973 or under section 19 of the M23 Treatment of Offenders Act (Northern Ireland) 1968;

(b) construe detention as meaning —

(i) in relation to Scotland, detention in a young offenders institution or detention centre;

(ii) in relation to England and Wales a sentence of youth custody, borstal training or detention in a young offender institution or detention centre; and

(iii) in relation to Northern Ireland, detention in a young offenders centre.

[F1488 (4A) The court shall, for the purpose of determining whether a person has been previously sentenced to imprisonment or detention by a court in a member State of the European Union F1489 ...—

(a) disregard any previous sentence of imprisonment which, being the equivalent of a suspended sentence, has not taken effect;

(b) construe detention as meaning an equivalent sentence to any of those mentioned in subsection (4)(b).

(4B) Any issue of equivalence arising in pursuance of subsection (4A) is for the court to determine.]

(5) This section does not affect the power of a court to pass sentence on any person for an offence the sentence for which is fixed by law.

(6) In this section—

• “legal aid” means legal aid for the purposes of any part of the proceedings before the court;

• “legally represented” means represented by counsel or a solicitor at some stage after the accused is found guilty and before he is dealt with as referred to in subsection (1) above.

Textual Amendments

F1479 Words in s. 204(1)(2) inserted (13.12.2010 for all purposes in respect of offences committed on or after this date) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 71(1), 206(1), Sch. 4 para. 5(a); S.S.I. 2010/413, art. 2, Sch.

F1480 Words in s. 204(1) substituted (31.12.2020) by virtue of The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 13(11)(a) (with reg. 16)

F1481 Words in s. 204(2) substituted (31.12.2020) by virtue of The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 13(11)(a) (with reg. 16)

F1482 Words in s. 204(2) repealed (1.8.1997) by 1997 c. 48, s. 62(2), Sch. 3; S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5) and expressed to be repealed (1.1.1998) by 1997 c. 48, s. 6(3)(a); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

F1483 S. 204(2A) inserted (1.1.1998) by 1997 c. 48, s. 6(3)(b); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

F1484 Words in s. 204(2A) inserted (19.6.2006 for certain purposes and otherwise prosp.) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 1(2), 89, Sch. 1 para. 2(6); S.S.I. 2006/332, art. 2

F1485 S. 204(3A)-(3D) inserted (1.2.2011for all purposes in respect of offences committed on or after this date) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 17, 206(1); S.S.I. 2010/413, art. 2, Sch.

F1486 Word in s. 204(3A) substituted (4.7.2019) by The Presumption Against Short Periods of Imprisonment (Scotland) Order 2019 (S.S.I. 2019/236), arts. 1(3), 2

F1487 S. 204(3E) inserted (3.7.2019) by The Presumption Against Short Periods of Imprisonment (Scotland) Order 2019 (S.S.I. 2019/236), arts. 1(2), 3

F1488 S. 204(4A)(4B) inserted (13.12.2010 for all purposes in respect of offences committed on or after this date) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 71(1), 206(1), Sch. 4 para. 5(b); S.S.I. 2010/413, art. 2, Sch.

F1489 Words in s. 204(4A) omitted (31.12.2020) by virtue of The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 13(11)(b) (with reg. 16)

Marginal Citations

M22 1973 c.62.

M23 1968 c.29. (N.I.)

[F1490 204A Restriction on consecutive sentences for released prisoners. S

A court sentencing a person to imprisonment or other detention shall not order or direct that the term of imprisonment or detention shall commence on the expiration of any other such sentence from which he has been released at any time under the existing or new provisions within the meaning of Schedule 6 to the M24 Prisoners and Criminal Proceedings (Scotland) Act 1993.]

Textual Amendments

F1490 S. 204A inserted (30.9.1998) by 1998 c. 37, s. 112; S.I. 1998/2327, art. 2(1)(x)

Marginal Citations

M24 1993 c.9.

[F1491 204B Consecutive sentences: life prisoners etc. S

(1) This section applies in respect of sentencing for offences committed after the coming into force of this section.

(2) Where, in solemn proceedings, the court sentences a person to imprisonment or other detention, the court may—

(a) if the person is serving or is liable to serve the punishment part of a previous sentence, frame the sentence to take effect on the day after that part of that sentence is or would be due to expire; or

(b) if the person is serving or is liable to serve the punishment parts of two or more previous sentences, frame the sentence to take effect on the day after the later or (as the case may be) latest expiring of those parts is or would be due to expire.

(3) Where, in such proceedings, it falls to the court to sentence a person who is subject to a previous sentence in respect of which a punishment part requires to be (but has not been) specified, the court shall not sentence the person until such time as the part is either specified or no longer requires to be specified.

(4) Where the court sentences a person to a sentence of imprisonment or other detention for life, for an indeterminate period or without limit of time, the court may, if the person is serving or is liable to serve for any offence—

(a) a previous sentence of imprisonment or other detention the term of which is not treated as part of a single term under section 27(5) of the 1993 Act; or

(b) two or more previous sentences of imprisonment or other detention the terms of which are treated as a single term under that section of that Act,

frame the sentence to take effect on the day after the person would (but for the sentence so framed and disregarding any subsequent sentence) be entitled to be released under the provisions referred to in section 204A of this Act as respects the sentence or sentences.

(5) Subsection (4)(a) above shall not apply where the sentence is a sentence from which he has been released at any time under the provisions referred to in section 204A of this Act.

(6) In this section, any reference to a punishment part of a sentence shall be construed by reference to—

(a) the punishment part of the sentence as is specified in an order mentioned in section 2(2) of the 1993 Act; or

(b) any part of the sentence which has effect, by virtue of section 10 of the 1993 Act or the schedule to the Convention Rights (Compliance)(Scotland) Act 2001 (asp 7), as if it were the punishment part so specified,

and “ the 1993 Act ” means the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9).

(7) This section is without prejudice to any other power under any enactment or rule of law as respects sentencing.]

Textual Amendments

F1491 S. 204B inserted (1.12.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 26(1), 89; S.S.I. 2003/475, art. 2, Sch.

205 Punishment for murder. S

(1) Subject to subsections (2) and (3) [F1492 and section 205D]below, a person convicted of murder shall be sentenced to imprisonment for life.

(2) Where a person convicted of murder is [F1493 a child] he shall not be sentenced to imprisonment for life but to be detained without limit of time and shall be liable to be detained in such place [F1494 (in any part of the United Kingdom)], and under such conditions, as the Secretary of State may [F1495 , subject to section 208A,] direct.

(3) Where a person convicted of murder has attained the age of 18 years but is under the age of 21 years he shall not be sentenced to imprisonment for life but to be detained in a young offenders institution and shall be liable to be detained for life.

F1496 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1496 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1496 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1492 Words in s. 205(1) inserted (17.12.2001) by 2001 asp 7, s. 2(1)(a); S.S.I. 2001/456, art. 2

F1493 Words in s. 205(2) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(3)(a), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F1494 Words in s. 205(2) inserted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(3)(b), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F1495 Words in s. 205(2) inserted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(3)(c), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F1496 S. 205(4)-(6) repealed (17.12.2001) by 2001 asp 7, s. 2(1)(b); S.S.I. 2001/456 art. 2

[F1497 205ZA Serious terrorism sentence E+W+S

(1) This section applies where—

(a) a person is convicted on indictment of a serious terrorism offence,

(b) the offence was committed on or after the day on which section 6 of the Counter-Terrorism and Sentencing Act 2021 comes into force,

(c) the offender was aged 18 or over when the offence was committed,

(d) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further serious terrorism offences or other terrorism offences to which section 210A applies,

(e) the court does not impose a sentence of imprisonment for life or a sentence of detention for life in a young offenders institution,

(f) the court does not make an order for lifelong restriction, and

(g) the risk of multiple deaths condition is met.

(2) Where the offender is 21 years of age or over, the court must impose a serious terrorism sentence of imprisonment unless the court is of the opinion that there are exceptional circumstances which—

(a) relate to the offence or to the offender, and

(b) justify not doing so.

(3) The risk of multiple deaths condition is that the court is of the opinion that—

(a) either—

(i) the serious terrorism offence, or

(ii) the combination of the offence and one or more offences associated with it,

was very likely to result in or contribute to (whether directly or indirectly) the deaths of at least two people as a result of an act of terrorism (within the meaning of section 1 of the Terrorism Act 2000), and

(b) the offender was, or ought to have been, aware of that likelihood.

(4) It is irrelevant for the purposes of determining whether the risk of multiple deaths condition is met whether or not any death actually occurred.

(5) A serious terrorism sentence of imprisonment is a sentence of imprisonment the term of which is equal to the aggregate of—

(a) the appropriate custodial term, and

(b) a further period (“the extension period”) for which the offender is to be subject to a licence under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.

(6) Where the offender is under 21 years of age, the court must impose a serious terrorism sentence of detention unless the court is of the opinion that there are exceptional circumstances which—

(a) relate to the offence or to the offender, and

(b) justify not doing so.

(7) A serious terrorism sentence of detention is a sentence of detention in a young offenders institution the term of which is equal to the aggregate of—

(a) the appropriate custodial term, and

(b) a further period (“the extension period”) for which the offender is to be subject to a licence under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.

(8) The appropriate custodial term is—

(a) 14 years, or

(b) if longer, the term of imprisonment or, as the case may be, detention that would be imposed in respect of the offence if the court did not impose a serious terrorism sentence of imprisonment or, as the case may be, a serious terrorism sentence of detention (or a sentence under section 205ZC or an extended sentence under section 210A).

(9) The extension period must be a period of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by the offender of further serious terrorism offences or other terrorism offences to which section 210A applies (but subject to subsection (10)).

(10) The extension period must—

(a) be at least 7 years, and

(b) not exceed 25 years.

(11) Before forming an opinion for the purposes of subsection (1)(d), the court must—

(a) consider a report by a relevant officer of a local authority about the offender and the offender's circumstances, and

(b) if the court thinks it necessary, hear that officer.

(12) In this section—

• “local authority” and “relevant officer” have the meanings given by section 27 of the Prisoners and Criminal Proceedings (Scotland) Act 1993;

• “serious terrorism offence” means an offence that—

  (a)

  is specified in Part 1 of Schedule 5ZA, or

  (b)

  is specified in Part 2 of that Schedule and has been proved to have been aggravated by reason of having a terrorist connection under section 31 of the Counter-Terrorism Act 2008.]

Textual Amendments

F1497 S. 205ZA inserted (29.6.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), ss. 6(1), 50(2)(d)

[F1498 205ZB Minimum punishment part where life sentence imposed for serious terrorism offence E+W+S

(1) This section applies where—

(a) section 205ZA(1)(a) to (d) and (f) applies in relation to a person, and

(b) the court—

(i) imposes a sentence of imprisonment for life or a sentence of detention for life in a young offenders institution on the person, or

(ii) makes an order for lifelong restriction in respect of the person.

(2) In making under section 2(3) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 an order mentioned in section 2(2) of that Act in respect of the offender, the court must specify a punishment part of at least 14 years (but subject to subsection (3) and section 196(1C) of this Act).

(3) The punishment part may be less than 14 years if the court is of the opinion that there are exceptional circumstances which—

(a) relate to the offence or to the offender, and

(b) justify a lesser period.

(4) Before forming an opinion for the purposes of section 205ZA(1)(d) (by virtue of subsection (1)), the court must—

(a) consider a report by a relevant officer of a local authority about the offender and the offender's circumstances, and

(b) if the court thinks it necessary, hear that officer.

(5) In this section, “local authority” and “relevant officer” have the meanings given by section 27 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.]

Textual Amendments

F1498 S. 205ZB inserted (29.6.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), ss. 12, 50(2)(g)

[F1499 205ZC Terrorism sentence with fixed licence period S

(1) This section applies where—

(a) a person is convicted on indictment of a terrorism offence on or after the day on which section 23 of the Counter-Terrorism and Sentencing Act 2021 comes into force, and

(b) the court does not impose one of the following for the offence—

(i) a sentence of imprisonment for life to which section 205ZB applies,

(ii) a sentence of imprisonment for life to which section 205ZB does not apply but which is imposed for a terrorism offence,

(iii) a sentence of detention for life to which section 205ZB applies,

(iv) a sentence of detention for life to which section 205ZB does not apply but which is imposed for a terrorism offence (or a sentence of detention without limit of time so imposed),

(v) an order for lifelong restriction to which section 205ZB applies,

(vi) an order for lifelong restriction to which section 205ZB does not apply but which is imposed for a terrorism offence,

(vii) a serious terrorism sentence of imprisonment under section 205ZA(2),

(viii) a serious terrorism sentence of detention under section 205ZA(6), or

(ix) an extended sentence under section 210A.

(2) But this section does not apply where—

(a) the offender is under the age of 18 when convicted of the offence, and

(b) the offence was committed before the day on which section 23 of the Counter-Terrorism and Sentencing Act 2021 came into force.

(3) If the court decides to impose a sentence of imprisonment and the offender is 21 years of age or over, the court must impose a sentence of imprisonment the term of which is equal to the aggregate of—

(a) the appropriate custodial term, and

(b) a further period of 1 year for which the offender is to be subject to a licence under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.

(4) If the offender is at least [F1500 18] years of age but under 21 (other than an offender falling within subsection (5)) and the court decides to impose a sentence of detention, the court must impose a sentence of detention in a young offenders institution the term of which is equal to the aggregate of—

(a) the appropriate custodial term, and

(b) a further period of 1 year for which the offender is to be subject to a licence under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.

(5) If the offender is a child and the court decides to impose a sentence of detention, the court must impose a sentence of detention in such place and on such conditions as may be directed under section 208 the term of which is equal to the aggregate of—

(a) the appropriate custodial term, and

(b) a further period of 1 year for which the offender is to be subject to a licence under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.

(6) The “appropriate custodial term” is the term that, in the opinion of the court, ensures that the sentence is appropriate.

(7) The term of a sentence of imprisonment or, as the case may be, a sentence of detention, imposed under this section for an offence must not exceed the term that, at the time the offence was committed, was the maximum term permitted for the offence.

(8) In this section, “terrorism offence” means—

(a) an offence that is specified in Schedule 5ZB, or

(b) any other offence that has been proved to have been aggravated by reason of having a terrorist connection under section 31 of the Counter-Terrorism Act 2008.]

Textual Amendments

F1499 S. 205ZC inserted (30.4.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), ss. 23(2), 50(1)(d)

F1500 Word in s. 205ZC(4) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), s. 38(3), sch. para. 10(2); S.S.I. 2024/211, reg. 2(j)(i) (with reg. 3)

[F1501 205B Minimum sentence for third conviction of certain offences relating to drug trafficking. S

(1) This section applies where—

(a) a person is convicted on indictment in the High Court of a class A drug trafficking offence committed after the commencement of section 2 of the Crime and Punishment (Scotland) Act 1997;

(b) at the time when that offence was committed, he had attained the age of at least 18 years and had [F1502 two previous convictions for relevant offences], irrespective of—

(i) whether either of those offences was committed before or after the commencement of section 2 of the Crime and Punishment (Scotland) Act 1997;

(ii) the court in which any such conviction was obtained; and

(iii) his age at the time of the commission of either of those offences; and

(c) one of the offences mentioned in paragraph (b) above was committed after he had been convicted of the other.

[F1503 (1A) In subsection (1), “ relevant offence ” means—

(a) in relation to a conviction by a court in any part of the United Kingdom, a class A drug trafficking offence;

(b) in relation to a conviction by a court in a member State of the European Union [F1504 which the court passing sentence considers appropriate to take into account], an offence that is equivalent to a class A drug trafficking offence.

(1B) Any issue of equivalence arising in pursuance of subsection (1A)(b) is for the court to determine.]

(2) Subject to subsection (3) below, where this section applies the court shall sentence the person—

(a) where he has attained the age of 21 years, to a term of imprisonment of at least seven years; and

(b) where he has attained the age of 18 years but is under the age of 21 years, to detention in a young offenders institution for a period of at least seven years.

(3) The court shall not impose the sentence otherwise required by subsection (2) above where it is of the opinion that there are specific circumstances which—

(a) relate to any of the offences or to the offender; and

(b) would make that sentence unjust.

(4) For the purposes of section 106(2) of this Act a sentence passed under subsection (2) above in respect of a conviction for a class A drug trafficking offence shall not be regarded as a sentence fixed by law for that offence.

(5) In this section “ class A drug trafficking offence ” means a drug trafficking offence committed in respect of a class A drug; and for this purpose—

• “ class A drug ” has the same meaning as in the M25 Misuse of Drugs Act 1971;

• [F1505 “ drug trafficking offence ” means an offence specified in paragraph 2 or (so far as it relates to that paragraph) paragraph 10 of Schedule 4 to the Proceeds of Crime Act 2002; ]]

[F1506 (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.]

Textual Amendments

F1501 S. 205B inserted (20.10.1997) by 1997 c. 48, s. 2(1); S.I. 1997/2323, art. 3, Sch. 1

F1502 Words in s. 205B(1)(b) substituted (13.12.2010 for all purposes in respect of offences committed on or after this date) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 71(1), 206(1), Sch. 4 para. 6(a); S.S.I. 2010/413, art. 2, Sch.

F1503 S. 205B(1A)(1B) inserted (13.12.2010 for all purposes in respect of offences committed on or after this date) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 71(1), 206(1), Sch. 4 para. 6(b); S.S.I. 2010/413, art. 2, Sch.

F1504 Words in s. 205B(1A)(b) substituted (31.12.2020) by The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 13(12)(a) (with reg. 16)

F1505 In s. 205B(5) definition of "drug trafficking offence" substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 456, 458, Sch. 11 para. 29(3); S.S.I. 2003/210, art. 2, Sch. (subject to arts. 3-7)

F1506 S. 205B(6) inserted (31.12.2020) by The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 13(12)(b) (with reg. 16)

Marginal Citations

M25 1971 c.38.

[F1507 205C Meaning of “conviction” for purposes of sections 205A and 205B. S

(1) For the purposes of paragraph (b) of subsection (1) of each of sections 205A and 205B of this Act “ conviction ” includes—

(a) a finding of guilt in respect of which the offender was admonished under section 181 of the M26 Criminal Procedure (Scotland) Act 1975 (admonition); and

(b) a conviction for which an order is made placing the offender on probation,

and related expressions shall be construed accordingly.

(2) This subsection applies where a person has at any time been convicted of an offence under—

(a) section 70 of the M27 Army Act 1955;

(b) section 70 of the M28 Air Force Act 1955; or

(c) section 42 of the M29 Naval Discipline Act 1957.

(3) Where subsection (2) above applies and the corresponding civil offence (within the meaning of the Act under which the offence was committed) was—

(a) a relevant offence within the meaning of section 205A of this Act; or

(b) a Class A drug trafficking offence within the meaning of section 205B of this Act,

that section shall have effect as if he had been convicted in England and Wales of the corresponding civil offence.]

Textual Amendments

F1507 S. 205C inserted (20.10.1997 for specified purposes and otherwise prosp.) by 1997 c. 48, ss. 3, 65(2); S.I. 1997/2323, art. 3, Sch. 1

Marginal Citations

M26 1975 c. 21.

M27 1955 c.18.

M28 1955 c.19.

M29 1957 c. 53.

[F1508 205D Only one sentence of imprisonment for life to be imposed in any proceedings S

Where a person is convicted on the same indictment of more than one offence for which the court must impose or would, apart from this section, have imposed a sentence of imprisonment for life, only one such sentence shall be imposed in respect of those offences.]

Textual Amendments

F1508 S. 205D inserted (8.10.2001) by 2001 asp 7, s. 2(2); S.S.I. 2001/274, art. 3(3)

206 Minimum periods of imprisonment. S

(1) No person shall be sentenced to imprisonment by a court of summary jurisdiction for a period of less than [F1509 15] days.

(2) F1510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) F1510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) F1510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) F1510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) F1510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1509 Word in s. 206(1) substituted (13.12.2010 for all purposes in respect of offences committed on or after this date) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 16(3)(a), 206(1); S.S.I. 2010/413, art. 2, Sch.

F1510 S. 206(2)-(6) repealed (13.12.2010 for all purposes in respect of offences committed on or after this date) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 16(3)(b), 206(1); S.S.I. 2010/413, art. 2, Sch.

207 Detention of young offenders. S

(1) It shall not be competent to impose imprisonment on a person under 21 years of age.

(2) Subject to [F1511 sections 205(2) and (3) [F1512 , 205ZA(6), 205ZC(4)], 205A(2)(b) and 205B(2)(b)] of this Act and to subsections (3) and (4) below, a court may impose detention (whether by way of sentence or otherwise) on a person, who is not less than [F1513 18] but under 21 years of age, where but for subsection (1) above the court would have power to impose a period of imprisonment; and a period of detention imposed under this section on any person shall not [F1514 be less than the minimum nor more than]the maximum period of imprisonment which might otherwise have been imposed.

(3) The court shall not under subsection (2) above impose detention on an offender unless it is of the opinion that no other method of dealing with him is appropriate; and the court shall state its reasons for that opinion, and, except in the case of the High Court, those reasons shall be entered in the record of proceedings.

[F1515 (3A) Subsections (2) and (3) above are subject to—

(a) section 51A(2) of the Firearms Act 1968 (minimum sentences for certain firearms offences); and

(b) section 29(8) of the Violent Crime Reduction Act 2006 (minimum sentence of detention for certain offences relating to dangerous weapons).]

(4) To enable the court to form an opinion under subsection (3) above, it shall obtain from an officer of a local authority or otherwise such information as it can about the offender’s circumstances; and it shall also take into account any information before it concerning the offender’s character and physical and mental condition.

[F1516 (4A) In forming an opinion under subsection (3) above the court shall take into account its power to make a hospital direction in addition to imposing a period of detention.]

[F1517 (4B) Subsections (4) and (4A) above apply to the forming of an opinion under the enactments mentioned in subsection (3A) above as they apply to the forming of an opinion under subsection (3) above.]

(5) A sentence of detention imposed under this section shall be a sentence of detention in a young offenders institution.

Textual Amendments

F1511 Words in s. 207(2) substituted (20.10.1997 for specified purposes and otherwise prosp.) by 1997 c. 48, ss. 62(1), 65(2), Sch. 1 para. 21(25)(a); S.I. 1997/2323, art. 3, Sch. 1

F1512 Words in s. 207(2) inserted (30.4.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), s. 50(1)(i), Sch. 13 para. 53(2)

F1513 Word in s. 207(2) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(4), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F1514 Words in s. 207(2) substituted (20.10.1997 for specified purposes and otherwise prosp.) by 1997 c. 48, ss. 62(1), 65(2), Sch. 1 para. 21(25)(b); S.I. 1997/2323, art. 3, Sch. 1

F1515 S. 207(3A) inserted (6.4.2007) by Violent Crime Reduction Act 2006 (c. 38), ss. 49, 66(2), Sch. 1 para. 4(3)(a); S.I. 2007/858, art. 2(g)

F1516 S. 207(4A) inserted (1.1.1998) by 1997 c. 48, s. 6(4); S.I. 1997/2323, art. 4, Sch. 2 (subject to art. 7)

F1517 S. 207(4B) inserted (6.4.2007) by Violent Crime Reduction Act 2006 (c. 38), ss. 49, 66(2), Sch. 1 para. 4(3)(b); S.I. 2007/858, art. 2(g)

208 Detention of children convicted on indictment. S

[F1518 (1)] Subject to [F1519 sections 205 and 205ZC(5)] of this Act [F1520 and subsection (3) below] , where a child is convicted on indictment and the court is of the opinion that no other method of dealing with him is appropriate, it may sentence him to be detained for a period which it shall specify in the sentence; and the child shall during that period be liable to be detained in such place [F1521 (in any part of the United Kingdom)] and on such conditions as the Secretary of State may [F1522 , subject to section 208A,] direct.

[F1523 (1A) Where the court imposes a sentence of detention on a child, the court must—

(a) state its reasons for the opinion that no other method of dealing with the child is appropriate, and

(b) have those reasons entered in the record of the proceedings.]

[F1524 (2) [F1525 Subsections (1) and (1A) above are] subject to—

(a) section 51A(2) of the Firearms Act 1968 (minimum sentences for certain firearms offences); and

(b) section 29(9) of the Violent Crime Reduction Act 2006 (minimum sentence of detention for certain offences relating to dangerous weapons).]

[F1526 (3) If the child is under the age of 16 years, the power conferred by subsection (1) above shall not be exercisable in respect of a conviction for an offence under section 9(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) or that section as applied by section 234AA(11) of this Act.]

Textual Amendments

F1518 S. 208 renumbered (22.1.2004) as s. 208(1) by Criminal Justice Act 2003 (c. 44), ss. 290(3), 336; S.I. 2004/81, art. 3

F1519 Words in s. 208(1) substituted (30.4.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), s. 50(1)(i), Sch. 13 para. 53(3)

F1520 Words in s. 208 inserted (28.10.2004) by Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), ss. 10(3), 145(2); S.S.I. 2004/420, art. 3, Sch. 1

F1521 Words in s. 208(1) inserted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(5)(a), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F1522 Words in s. 208(1) inserted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(5)(b), 38(3); S.S.I. 2024/211, reg. 2(d) (with reg. 3)

F1523 S. 208(1A) inserted (1.2.2011 for all purposes in respect of offences committed on or after this date) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 21(2), 206(1); S.S.I. 2010/413, art. 2, Sch.

F1524 S. 208(2) substituted (6.4.2007) by Violent Crime Reduction Act 2006 (c. 38), ss. 49, 66(2), Sch. 1 para. 4(4); S.I. 2007/858, art. 2(g)

F1525 Words in s. 208(2) substituted (1.2.2011 for all purposes in respect of offences committed on or after this date) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 21(3), 206(1); S.S.I. 2010/413, art. 2, Sch.

F1526 S. 208(3) added (28.10.2004) by Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), ss. 10(4), 145(2); S.S.I. 2004/420, art. 3, Sch. 1

[F1527 208A Detention of children under sections 205(2) and 208(1) E+W+S

(1) This section applies where a child is sentenced—

(a) to be detained without limit of time under section 205(2), or

(b) to be detained under section 208(1).

(2) The Scottish Ministers may not direct under section 205(2) or, as the case may be, 208(1) that a child be detained in a prison or a young offenders institution.

(3) The Scottish Ministers may direct that a child be detained in secure accommodation.

(4) The Scottish Ministers may by regulations make provision about the detention in secure accommodation of children to whom this section applies.

(5) Regulations under subsection (4) may, in particular, make provision about the circumstances in which such children may remain in secure accommodation despite attaining the age of 18 years (provided that no person may remain in such accommodation after attaining the age of 19 years).

(6) Regulations under subsection (4) are subject to the affirmative procedure.

(7) In this section, “secure accommodation” has the meaning given by section 202(1) of the Children’s Hearings (Scotland) Act 2011.]

Textual Amendments

F1527 S. 208A inserted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 19(6), 38(3); S.S.I. 2024/211, reg. 2(d) (with