Modifications etc. (not altering text)
C1 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)
(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;
[F2(ca)a decision under section 92 of the Proceeds of Crime Act 2002 not to make a confiscation order;.]
[F3(cb)a decision under section 22A of the Serious Crime Act 2007 not to make a serious crime prevention order;]
[F4(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;]
[F5(cd)a decision under section 97B(2) of the Proceeds of Crime Act 2002 to make or not to make a compliance order;]
[F6(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,]
F7(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F8(dd)a drug treatment and testing order;]
F7(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) [F9, (c) [F10, (ca), (cb) [F11, (cc) [F12, (cd), (ce) or (cf)]]]] of that subsection, that the decision not to make the order in question was inappropriate;
(iii)paragraph [F13(cd) or] [F14(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.
[F15(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.]
[F16(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
F1 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)
F2 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)
F3S. 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)
F4S. 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.
F5S. 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)
F6S. 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.
F7 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)
F8 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)
F9 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)
F10Words 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.
F11Words 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)
F12Words 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.
F13Words 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)
F14 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)
F15S. 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)
F16 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)