PART I continued
(1) After section 174ZB of the 1975 Act (inserted by section 49(1) of this Act) there shall be inserted the following section—
(1) This section applies where—
(a) a person is, by virtue of section 174(2) or 174ZA(3) of this Act, acquitted on the ground of his insanity at the time of the act or omission; or
(b) following an examination of facts under section 174ZA, a court makes a finding under subsection (2) of that section.
(2) Subject to subsection (3) below, where this section applies the court may, as it thinks fit—
(a) make an order (which shall have the same effect as a hospital order) that the person be detained in such hospital as the court may specify;
(b) in addition to making an order under paragraph (a) above, make an order (which shall have the same effect as a restriction order) that the person shall, without limit of time, be subject to the special restrictions set out in section 62(1) of the [1984 c. 36.] Mental Health (Scotland) Act 1984;
(c) make an order (which shall have the same effect as a guardianship order) placing the person under the guardianship of a local authority or of a person approved by a local authority;
(d) make a supervision and treatment order (within the meaning of paragraph 1(1) of Schedule 5A to this Act); or
(e) make no order.
(3) Where the offence with which the person was charged is murder, the court shall make orders under both paragraphs (a) and (b) of subsection (2) above in respect of that person.
(4) Sections 175(1) and (3) to (6) and 176 to 178 of this Act shall have effect in relation to the making, terms and effect of an order under paragraph (a), (b) or (c) of subsection (2) above as those provisions have effect in relation to the making, terms and effect of, respectively, a hospital order, a restriction order and a guardianship order as respects a person convicted of an offence, other than an offence the sentence for which is fixed by law, punishable by imprisonment.”.
(2) After section 375ZB of the 1975 Act (inserted by section 49(2) of this Act) there shall be inserted the following section—
(1) This section applies where—
(a) a person is, by virtue of section 375(3A) or 375ZA(3) of this Act, acquitted on the ground of his insanity at the time of the act or omission; or
(b) following an examination of facts under section 375ZA, a court makes a finding under subsection (2) of that section.
(2) Where this section applies the court may, as it thinks fit—
(a) make an order (which shall have the same effect as a hospital order) that the person be detained in such hospital as the court may specify;
(b) in addition to making an order under paragraph (a) above, make an order (which shall have the same effect as a restriction order) that the person shall, without limit of time, be subject to the special restrictions set out in section 62(1) of the [1984 c. 36.] Mental Health (Scotland) Act 1984;
(c) make an order (which shall have the same effect as a guardianship order) placing the person under the guardianship of a local authority or of a person approved by a local authority;
(d) make a supervision and treatment order (within the meaning of paragraph 1(1) of Schedule 5A to this Act); or
(e) make no order.
(3) Sections 376(1) and (6) to (9) and 377 to 379 of this Act shall have effect in relation to the making, terms and effect of an order under paragraph (a), (b) or (c) of subsection (2) above as those provisions have effect in relation to the making, terms and effect of, respectively, a hospital order, a restriction order and a guardianship order as respects a person convicted of an offence, other than an offence the sentence for which is fixed by law, punishable by imprisonment.”
(3) The Schedule set out in Schedule 2 to this Act (which makes provision as respects supervision and treatment orders) shall be inserted in the 1975 Act as Schedule 5A to that Act.
(1) After section 174ZC of the 1975 Act (inserted by section 50(1) of this Act) there shall be inserted the following section—
(1) A person may appeal to the High Court against—
(a) a finding made under section 174(1) of this Act that he is insane so that his trial cannot proceed or continue, or the refusal of the court to make such a finding;
(b) a finding under section 174ZA(2) of this Act; or
(c) an order made under section 174ZC(2) of this Act.
(2) An appeal under subsection (1) above shall be—
(a) in writing; and
(b) lodged—
(i) in the case of an appeal under paragraph (a) of that subsection, not later than seven days after the date of the finding or refusal which is the subject of the appeal;
(ii) in the case of an appeal under paragraph (b), or both paragraphs (b) and (c), of that subsection, not later than 28 days after the conclusion of the examination of facts;
(iii) in the case of an appeal under paragraph (c) of that subsection against an order made on an acquittal, by virtue of section 174(2) or 174ZA(3) of this Act, on the ground of insanity at the time of the act or omission, not later than 14 days after the date of the acquittal;
(iv) in the case of an appeal under that paragraph against an order made on a finding under section 174ZA(2), not later than 14 days after the conclusion of the examination of facts,
or within such longer period as the High Court may, on cause shown, allow.
(3) Subsections (1)(a) and (2)(b)(i) above are without prejudice to section 76A(1) of this Act.
(4) Where an appeal is taken under subsection (1) above, the period from the date on which the appeal was lodged until it is withdrawn or disposed of shall not count towards any time limit applying in respect of the case.
(5) An appellant in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate.
(6) In disposing of an appeal under subsection (1) above the High Court may—
(a) affirm the decision of the court of first instance;
(b) make any other finding or order which that court could have made at the time when it made the finding or order which is the subject of the appeal; or
(c) remit the case to that court with such directions in the matter as the High Court thinks fit.
(7) Section 280 of this Act shall not apply in relation to any order as respects which a person has a right of appeal under subsection (1)(c) above.”.
(2) After section 375ZC of that Act (inserted by section 50(2) of this Act) there shall be inserted the following section—
(1) A person may appeal to the High Court against—
(a) a finding made under section 375(2) of this Act that he is insane so that his trial cannot proceed or continue, or the refusal of the court to make such a finding;
(b) a finding under section 375ZA(2) of this Act; or
(c) an order made under section 375ZC(2) of this Act.
(2) An appeal under subsection (1) above shall be—
(a) in writing; and
(b) lodged—
(i) in the case of an appeal under paragraph (a) of that subsection, not later than seven days after the date of the finding or refusal which is the subject of the appeal;
(ii) in the case of an appeal under paragraph (b), or both paragraphs (b) and (c), of that subsection, not later than 28 days after the conclusion of the examination of facts;
(iii) in the case of an appeal under paragraph (c) of that subsection against an order made on an acquittal, by virtue of section 375(3A) or 375ZA(3) of this Act, on the ground of insanity at the time of the act or omission, not later than 14 days after the date of the acquittal;
(iv) in the case of an appeal under that paragraph against an order made on a finding under section 375ZA(2), not later than 14 days after the conclusion of the examination of facts,
or within such longer period as the High Court may, on cause shown, allow.
(3) Where an appeal is taken under subsection (1) above, the period from the date on which the appeal was lodged until it is withdrawn or disposed of shall not count towards any time limit applying in respect of the case.
(4) An appellant in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate.
(5) In disposing of an appeal under subsection (1) above the High Court may—
(a) affirm the decision of the court of first instance;
(b) make any other finding or order which that court could have made at the time when it made the finding or order which is the subject of the appeal; or
(c) remit the case to that court with such directions in the matter as the High Court thinks fit.
(6) Section 443 of this Act shall not apply in relation to any order as respects which a person has a right of appeal under subsection (1)(c) above.”.
(1) After section 174ZD of the 1975 Act (inserted by section 51(1) of this Act) there shall be inserted the following section—
(1) The Lord Advocate may appeal to the High Court on a point of law against—
(a) a finding under subsection (1) of section 174 of this Act that an accused is insane so that his trial cannot proceed or continue;
(b) an acquittal on the ground of insanity at the time of the act or omission by virtue of subsection (2) of that section;
(c) an acquittal under section 174ZA(3) of this Act (whether or not on the ground of insanity at the time of the act or omission); or
(d) any order made under section 174ZC(2) of this Act.
(2) An appeal under subsection (1) above shall be—
(a) in writing; and
(b) lodged—
(i) in the case of an appeal under paragraph (a) or (b) of that subsection, not later than seven days after the finding or, as the case may be, the acquittal which is the subject of the appeal;
(ii) in the case of an appeal under paragraph (c) or (d) of that subsection, not later than seven days after the conclusion of the examination of facts,
or within such longer period as the High Court may, on cause shown, allow.
(3) Subsection (1)(a) and (2)(b)(i) above are without prejudice to section 76A(1) of this Act.
(4) A respondent in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate.
(5) In disposing of an appeal under subsection (1) above the High Court may—
(a) affirm the decision of the court of first instance;
(b) make any other finding or order which that court could have made at the time when it made the finding or order which is the subject of the appeal; or
(c) remit the case to that court with such directions in the matter as the High Court thinks fit.”.
(2) After section 375ZD of that Act (inserted by section 51(2) of this Act) there shall be inserted the following section—
(1) The prosecutor may appeal to the High Court on a point of law against—
(a) a finding under subsection (2) of section 375 of this Act that an accused is insane so that his trial cannot proceed or continue;
(b) an acquittal on the ground of insanity at the time of the act or omission by virtue of subsection (3A) of that section;
(c) an acquittal under section 375ZA(3) of this Act (whether or not on the ground of insanity at the time of the act or omission); or
(d) any order made under section 375ZC(2) of this Act.
(2) An appeal under subsection (1) above shall be—
(a) in writing; and
(b) lodged—
(i) in the case of an appeal under paragraph (a) or (b) of that subsection, not later than seven days after the finding or, as the case may be, the acquittal which is the subject of the appeal;
(ii) in the case of an appeal under paragraph (c) or (d) of that subsection, not later than seven days after the conclusion of the examination of facts,
or within such longer period as the High Court may, on cause shown, allow.
(3) A respondent in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate.
(4) In disposing of an appeal under subsection (1) above the High Court may—
(a) affirm the decision of the court of first instance;
(b) make any other finding or order which that court could have made at the time when it made the finding or order which is the subject of the appeal; or
(c) remit the case to that court with such directions in the matter as the High Court thinks fit.”.
In each of sections 25 and 330 of the 1975 Act (power of court to commit to hospital person suffering from mental disorder), after subsection (4) there shall be inserted the following subsections—
“(5) Without prejudice to subsection (3) above, the court may review an order under subsection (1) above on the ground that there has been a change of circumstances since the order was made and, on such review—
(a) where the court considers that such an order is no longer required in relation to a person, it shall revoke the order and may deal with him in such way mentioned in subsection (3) above as the court thinks appropriate;
(b) in any other case, the court may—
(i) confirm or vary the order; or
(ii) revoke the order and deal with him in such way mentioned in subsection (3) above as the court considers appropriate.
(6) Subsections (1) to (4) above shall apply to the review of an order under subsection (5) above as they apply to the making of an order under subsection (1) above.”.
(1) In subsection (1) of each of sections 178 and 379 of the 1975 Act (power of court to impose restriction order in addition to hospital order), the words “either” and “or during such period as may be specified in the order” shall cease to have effect.
(2) The amendments made by subsection (1) above shall not have effect in relation to any restriction order made before the coming into force of this section.
(1) Each of sections 180 and 381 of the 1975 Act (remand for inquiry into physical or mental condition) shall be amended as follows.
(2) In subsection (1) for the words “shall remand him in custody or on bail for” there shall be substituted— “shall—
(a) for the purpose of inquiry solely into his physical condition, remand him in custody or on bail;
(b) for the purpose of inquiry into his mental condition (whether or not in addition to his physical condition), remand him in custody or on bail or, where the court is satisfied—
(i) on the written or oral evidence of a medical practitioner, that the person appears to be suffering from a mental disorder; and
(ii) that a hospital is available for his admission and suitable for his detention,
make an order committing him to that hospital,
for”.
(3) After subsection (1) there shall be inserted the following subsections—
“(1A) Where the court is of the opinion that a person ought to continue to be committed to hospital for the purpose of inquiry into his mental condition following the expiry of the period specified in an order for committal to hospital under paragraph (b) of subsection (1) above, the court may—
(a) if the condition in sub-paragraph (i) of that paragraph continues to be satisfied and a suitable hospital is available for his continued detention, renew the order for such further period not exceeding three weeks as the court thinks necessary to enable a medical examination and report to be made; and
(b) in any other case, remand the person in custody or on bail in accordance with subsection (1) above.
(1B) An order under subsection (1A)(a) above may, unless objection is made by or on behalf of the person to whom it relates, be made in his absence.
(1C) Where, before the expiry of the period specified in an order for committal to hospital under subsection (1)(b) above, the court considers, on an application made to it, that committal to hospital is no longer required in relation to the person, the court shall revoke the order and may make such other order, under subsection (1)(a) above or any other provision of this Part of this Act, as the court considers appropriate.”.
(4) In subsection (4), after the word “section” there shall be inserted “to remand in custody or on bail”.
(5) After subsection (4) there shall be inserted the following subsection—
“(4A) On making an order of committal to hospital under subsection (1)(b) above the court shall send to the hospital specified in the order a statement of the reasons for which the court is of the opinion that an inquiry ought to be made into the mental condition of the person to whom it relates, and of any information before the court about his mental condition.”.
(6) In subsection (5)—
(a) after the word “imposed” there shall be inserted “, and a person committed to hospital under this section may appeal against the order of committal,”;
(b) after the word “remand” there shall be inserted “or, as the case may be, committal”; and
(c) at the end of paragraph (b) there shall be inserted— “; or
(c) in the case of an appeal against an order of committal to hospital, revoke the order and remand the person in custody.”.
(7) After subsection (5) there shall be inserted the following subsections—
“(6) The court may, on cause shown, vary an order for committal to hospital under subsection (1)(b) above by substituting another hospital for the hospital specified in the order.
(7) Subsection (1)(b) above shall apply to the variation of an order under subsection (6) above as it applies to the making of an order for committal to hospital.”.
(1) There shall be established a body, to be known as the Criminal Courts Rules Council (in this section referred to as “the Council”) which shall have the functions conferred on it by subsection (9) below.
(2) The Council shall consist of—
(a) the Lord Justice General, the Lord Justice Clerk and the Clerk of Justiciary;
(b) a further Lord Commissioner of Justiciary appointed by the Lord Justice General;
(c) the following persons appointed by the Lord Justice General after such consultation as he considers appropriate—
(i) two sheriffs;
(ii) two members of the Faculty of Advocates;
(iii) two solicitors;
(iv) one sheriff clerk; and
(v) one person appearing to him to have a knowledge of the procedures and practices of the district court;
(d) two persons appointed by the Lord Justice General after consultation with the Lord Advocate, at least one of whom must be a procurator fiscal;
(e) two persons appointed by the Lord Justice General after consultation with the Secretary of State, at least one of whom must be a person appearing to the Lord Justice General to have—
(i) a knowledge of the procedures and practices of the courts exercising criminal jurisdiction in Scotland; and
(ii) an awareness of the interests of victims of crime and of witnesses in criminal proceedings; and
(f) any persons appointed under subsection (3) below.
(3) The Lord Justice General may appoint not more than two further persons, and the Secretary of State may appoint one person, to membership of the Council.
(4) The chairman of the Council shall be the Lord Justice General or such other member of the Council, being a Lord Commissioner of Justiciary, as the Lord Justice General may nominate.
(5) The members of the Council appointed under paragraphs (b) to (f) of subsection (2) above shall, so long as they retain the respective qualifications (if any) mentioned in those paragraphs, hold office for three years and be eligible for reappointment.
(6) Any vacancy in the membership of the Council by reason of the death or demission of office, prior to the expiry of the period for which he was appointed, of a member appointed under any of paragraphs (b) to (f) of subsection (2) above shall be filled by the appointment by the Lord Justice General or, as the case may be, the Secretary of State, after such consultation (if any) as is required by the paragraph in question, of another person having the qualifications (if any) required by that paragraph, and a person so appointed shall hold office only until the expiry of that period.
(7) The Council shall meet—
(a) at intervals of not more than 12 months; and
(b) at any time when summoned by the chairman or by three members of the Council,
but shall, subject to the foregoing, have power to regulate the summoning of its meetings and the procedure at such meetings.
(8) At any meeting of the Council six members shall be a quorum.
(9) The functions of the Council shall be—
(a) to keep under general review the procedures and practices of the courts exercising criminal jurisdiction in Scotland (including any matters incidental or relating to those procedures or practices); and
(b) to consider and comment on any draft Act of Adjournal submitted to it by the High Court, which shall, in making the Act of Adjournal, take account to such extent as it considers appropriate of any comments made by the Council under this paragraph.
(10) In the discharge of its functions under subsection (9) above the Council may invite representations on any aspect of the procedures and practices of the courts exercising criminal jurisdiction in Scotland (including any matters incidental or relating to those procedures or practices) and shall consider any such representations received by it, whether or not submitted in response to such an invitation.
(11) Except where the context otherwise requires, expressions used in this section and in the 1975 Act have the same meaning in this section as in that Act.
(1) The Secretary of State shall in each year publish such information as he considers expedient for the purpose of—
(a) enabling persons engaged in the administration of criminal justice to become aware of the financial implications of their decisions; or
(b) facilitating the performance by such persons of their duty to avoid discriminating against any persons on the ground of race or sex or any other improper ground.
(2) Publication under subsection (1) above shall be effected in such manner as the Secretary of State considers appropriate for the purpose of bringing the information to the attention of the persons concerned.
(1) Section 28 of the [1993 c. 9.] Prisoners and Criminal Proceedings (Scotland) Act 1993 (prints, samples etc. in criminal investigations) shall be amended in accordance with subsections (2) to (4) below.
(2) In subsection (3)—
(a) at the beginning there shall be inserted the words “Subject to subsection (3A) below,”;
(b) after the words “subsection (2) above” there shall be inserted “, all samples taken under subsection (4) below and all information derived from such samples”; and
(c) for the word “immediately” there shall be substituted “as soon as possible”.
(3) After subsection (3) there shall be inserted the following subsections—
“(3A) The duty under subsection (3) above to destroy samples taken under subsection (4) below and information derived from such samples shall not apply 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.
(3B) No sample, or information derived from a sample, retained by virtue of subsection (3A) 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.
(3C) The duty under subsection (3) above shall not apply 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 any police force in relation to the person.”.
(4) In subsection (4)—
(a) in paragraph (a)—
(i) after the word “body” there shall be inserted “, other than pubic hair,”; and
(ii) for the words “or combing” there shall be substituted “, combing or plucking”; and
(b) at the end there shall be inserted the following paragraph—
“(d) from the inside of the mouth, by means of swabbing, a sample of saliva or other material”.
(5) After section 28 of that Act of 1993 there shall be inserted the following sections—
(1) This section applies where a person convicted of an offence—
(a) has not, since the conviction, had a sample, print or impression taken from him; or
(b) has (whether before or after the conviction) had a sample, print or impression taken from him but it was not suitable for the means of analysis for which it 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—
(a) take from the convicted person fingerprints, palmprints and such other prints and impressions of an external part of the body as the constable reasonably considers it appropriate to take; and
(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 (d) of subsection (4) of section 28 of this Act by the means specified in that paragraph in relation to that sample.
(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 within the meaning of the 1975 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 police force which instructed the analysis receives written intimation that the sample, print or impression 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.