Part 4

Miscellaneous and General

Miscellaneous

Convention rights and EU law: criminal appeals to the Supreme Court
36
1
The 1998 Act is amended as follows.
2
In section 57(3) (EU law and Convention rights: excepted acts of the Lord Advocate) omit the words after paragraph (b).
3
In section 102 (powers of courts or tribunals to vary retrospective decisions)—
a
in subsection (4)(b) at the end insert “or to a compatibility issue,”;
b
after subsection (5) insert—
5A
Where the decision mentioned in subsection (1) is a decision of the Supreme Court on a compatibility issue, the power to make an order under this section is exercisable by the High Court of Justiciary instead of the Supreme Court.
;
c
in subsection (7) before the definition of “intimation” insert—
- “compatibility issue” has the meaning given by section 288ZA of the Criminal Procedure (Scotland) Act 1995,
.
4
In paragraph 1 of Schedule 6 (devolution issues), after sub-paragraph (f) insert—
But a question arising in criminal proceedings in Scotland that would, apart from this paragraph, be a devolution issue is not a devolution issue if (however formulated) it relates to the compatibility with any of the Convention rights or with EU law of
a
an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament,
b
a function,
c
the purported or proposed exercise of a function,
d
a failure to act.
5
The Criminal Procedure (Scotland) Act 1995 is amended as follows.
6
After section 288A insert—

Appeals to the Supreme Court: compatibility issues
288AA
1
For the purpose of determining any compatibility issue an appeal lies to the Supreme Court against a determination in criminal proceedings by a court of two or more judges of the High Court.
2
On an appeal under this section—
a
the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue;
b
for that purpose the Court may make any change in the formulation of that issue that it thinks necessary in the interests of justice.
3
When it has determined the compatibility issue the Supreme Court must remit the proceedings to the High Court.
4
In this section “compatibility issue” has the same meaning as in section 288ZA.
5
An appeal under this section against a determination lies only with the permission of the High Court or, failing that permission, with the permission of the Supreme Court.
6
Subsection (5) does not apply if it is an appeal by the Lord Advocate or the Advocate General for Scotland against a determination by the High Court of a compatibility issue referred to it under section 288ZB(2).
7
An application to the High Court for permission under subsection (5) must be made—
a
within 28 days of the date of the determination against which the appeal lies, or
b
within such longer period as the High Court considers equitable having regard to all the circumstances.
8
An application to the Supreme Court for permission under subsection (5) must be made—
a
within 28 days of the date on which the High Court refused permission under that subsection, or
b
within such longer period as the Supreme Court considers equitable having regard to all the circumstances.
7
Section 288B (appeals to the Supreme Court) is amended as follows.
8
For the heading substitute “Appeals to the Supreme Court: general”.
9
In subsection (1)—
a
after “under” insert “section 288AA of this Act or”;
b
omit “of a devolution issue”.
10
In sections 112(6), 121(5)(a), 121A(5), 122(4) and (5) and 177(8), after “under” insert “section 288AA of this Act or”.
11
In section 124(2)—
a
after “Part XA” insert “and sections 288ZB and 288AA”;
b
after “purposes of” insert “a reference under section 288ZB or”;
c
after “appeal under” insert “section 288AA of this Act or”.