PART VIII

Appeals from Solemn Proceedings

Lord Advocate’s right of appeal against disposal.
108
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;
ca
a decision under section 92 of the Proceeds of Crime Act 2002 not to make a confiscation order;.
cb
a decision under section 22A of the Serious Crime Act 2007 not to make a serious crime prevention order;
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;
cd
a decision under section 97B(2) of the Proceeds of Crime Act 2002 to make or not to make a compliance order;
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,
d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
dd
a drug treatment and testing order;
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)
, (c)
, (ca), (cb)
, (cc)
, (cd), (ce) or (cf)
of that subsection, that the decision not to make the order in question was inappropriate;
iii
paragraph
(cd) or
(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.
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.
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.
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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.
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)
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.
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.
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)
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)
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.