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 (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 [F220 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(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)

F220 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 F221 . . . shall be entitled immediately, on any [F222 (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, F223 . . ., and having given the prosecutor an opportunity to be heard, admit or refuse to admit the person to bail.

[F224 (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 [F225 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

F221 Words in s. 23(1) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(1)(a)(i)

F222 Words in s. 23(1) inserted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(1)(a)(ii)

F223 Words in s. 23(5) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(1)(b)

F224 S. 23(6) substituted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 7(1)(c)

F225 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)

[F226 23A Bail and liberation where person already in custody S

(1) A person may be admitted to bail under section 22A , [F227 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 [F228 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 , [F229 23, 65(8C) or 107A(7)(b)] of this Act.]

Textual Amendments

F226 S. 23A inserted (9.8.2000) by 2000 asp 9, s. 2

F227 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.

F228 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.

F229 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.

[F230 23B Entitlement to bail and the court's function S

(1) Bail is to be granted to an accused person—

(a) except where—

(i) by reference to section 23C of this Act; and

(ii) having regard to the public interest,

there is good reason for refusing bail;

(b) subject to section 23D of this Act.

(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.

(3) Reference in subsections (1)(a)(ii) and (2) above to the public interest includes (without prejudice to the generality of the public interest) reference to the interests of public safety.

(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.

(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 to provide it with information relevant to the question.

(7) However, whether that party gives the court opinion as to any risk of something occurring (or any likelihood of something not occurring) is a matter for that party to decide.

Textual Amendments

F230 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)

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) 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.

(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 [F231 by courts outside [F232 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.

Textual Amendments

F230 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)

F231 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.

F232 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)

23D Restriction on bail in certain solemn cases S

(1) Where subsection (2) or (3) below applies, a person is to be granted bail in solemn proceedings only if there are exceptional circumstances justifying bail.

(2) This subsection applies where the person—

(a) is accused in the proceedings of [F233 an offence falling within subsection (3A)]; and

(b) has a previous conviction on indictment for [F234 an offence falling within subsection (3A)].

(3) This subsection applies where the person—

(a) is accused in the proceedings of a drug trafficking offence; and

(b) has a previous conviction on indictment for a drug trafficking offence.

[F235 (3A) An offence falls within this subsection if it is—

(a) a violent offence,

(b) a sexual offence, or

(c) a domestic abuse offence.]

(4) For the purposes of this section—

• “drug trafficking offence” has the meaning given by section 49(5) of the Proceeds of Crime (Scotland) Act 1995 (c. 43);

• [F236 “domestic abuse offence” means—

  (a)

  an offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018, or

  (b)

  an offence that is aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016;]

• “sexual offence” has the meaning given by section 210A(10) and (11) of this Act;

• “violent offence” means any offence (other than a sexual offence) inferring personal violence.

(5) Any reference in this section to a conviction on indictment for [F237 a type of offence] includes—

(a) a conviction on indictment in England and Wales or Northern Ireland for an equivalent offence;

(b) [F238 if the court considers appropriate] a conviction in a member State of the European Union (F239 ...) which is equivalent to conviction on indictment for an equivalent offence.

(6) Any issue of equivalence arising in pursuance of subsection (5) above is for the court to determine.

(7) This section is without prejudice to section 23C of this Act.]

Textual Amendments

F230 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)

F233 Words in s. 23D(2)(a) substituted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 1(2)(a)(i); S.S.I. 2018/387, reg. 2 (with reg. 6)

F234 Words in s. 23D(2)(b) substituted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 1(2)(a)(ii); S.S.I. 2018/387, reg. 2 (with reg. 6)

F235 S. 23D(3A) inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 1(2)(b); S.S.I. 2018/387, reg. 2 (with reg. 6)

F236 Words in s. 23D(4) inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 1(2)(c); S.S.I. 2018/387, reg. 2 (with reg. 6)

F237 Words in s. 23D(5) substituted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 1(2)(d); S.S.I. 2018/387, reg. 2 (with reg. 6)

F238 Words in s. 23D(5)(b) inserted (31.12.2020) by The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 13(3)(a) (with reg. 16)

F239 Words in s. 23D(5)(b) 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(3)(b) (with reg. 16)

24 Bail and bail conditions. S

(1) All crimes and offences F240 . . . 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.

[F241 (2A) Whenever the court grants or refuses bail, it shall state its reasons.

(2B) Where the court—

(a) grants bail to a person accused of a sexual offence (having the meaning given by section 210A(10) and (11) of this Act); 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.]

(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 [F242 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; F243 ...

F243 (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; [F244 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; F245 . . .

[F246 (ca) does not behave in a manner which causes, or is likely to cause, alarm or distress to witnesses;]

[F247 (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 [F248 ; and

(e) where the (or an) offence in respect of which he is admitted to bail is one [F249 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.

[F250 (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.

[F251 (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 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

F240 Words in s. 24(1) repealed (9.8.2000) by 2000 asp 9, s. 3(1)

F241 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)

F242 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))

F243 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.

F244 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)

F245 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

F246 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)

F247 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.

F248 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

F249 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)

F250 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)

F251 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)

24A Bail conditions: remote monitoring of restrictions on movements S

F252 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F252 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

F253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F253 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

F254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F254 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

F255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F255 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

F256 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F256 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.

[F257 [F258 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—

(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.

(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

F257 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)

F258 S. 24F: 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)

25 Bail conditions: supplementary. S

[F259 (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

[F260 (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.

[F261 (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.]

[F262 (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.

[F263 (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

F259 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)

F260 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)

F261 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))

F262 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)

F263 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)

[F264 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

F264 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)

F265 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F265 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 [F266 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 [F267 JP court], not exceeding 60 days; or

(ii) in any other case, not exceeding [F268 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.

[F269 [F270 (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.

[F271 (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 [F272 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.]

[F273 (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 [F267 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.

[F274 (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 [F275 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.

[F276 (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) [F277 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.

[F278 (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

F266 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)

F267 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

F268 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)

F269 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)

F270 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.

F271 S. 27(4A) inserted (4.7.1996) by 1996 c. 25, s. 73(2)

F272 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)

F273 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)

F274 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)

F275 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)

F276 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.

F277 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)

F278 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.

[F279 (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.]

[F280 (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 [F281 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.

[F282 (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.

[F283 (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

F279 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.

F280 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)

F281 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)

F282 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.

F283 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)

[F284 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

F284 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.

[F285 (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) [F286 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.]

[F287 [F288 (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 5determination 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) [F289 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

F285 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)

F286 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)

F287 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)

F288 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.