Office of Public Sector Information
Section 117.
1 Section 3 of and Schedules D (form of execution of citation of witnesses), E (form of execution of citation of jurors), N (form of notice of further diet) and O (form of notice of postponed second diet) to the Criminal Procedure (Scotland) Act 1887 shall cease to have effect.
2 Schedule 7 to the Criminal Justice (Scotland) Act 1949 (forms of notices to accused in proceedings on indictment) shall cease to have effect.
3 Parts I and III to VI of Schedule 2 (forms of procedure) and Schedule 3 (table of fees) to the Summary Jurisdiction (Scotland) Act 1954 shall cease to have effect.
4 In section 8(1)(b) of the Backing of Warrants (Republic of Ireland) Act 1965 (rules of court), for the words “457(a)” there shall be substituted “457ZA”.
5 In section 69(2) of the Criminal Justice Act 1967 (extension of enactments relating to persons sentenced to imprisonment or detention to young offenders), the words “, section 40 of the Prisons (Scotland) Act 1989” shall cease to have effect.
6 The Criminal Procedure (Scotland) Act 1975 shall be amended as follows.
7 In section 6(3) (jurisdiction and procedure in respect of certain indictable offences committed abroad)—
(a) after the word “section” there shall be inserted “—(a)”; and
(b) for the words “as if” there shall be substituted— “; or
(b) in such sheriff court district as the Lord Advocate may determine,
as if”.
8 Sections 14(3) and 323(3) (warrant to search for or remove any person accused of an offence in respect of a child) shall cease to have effect.
9 After section 15 there shall be inserted the following section—
Any warrant for search or apprehension granted under this Part of this Act shall be signed by the judge granting it, and execution upon any such warrant may proceed either upon the warrant itself or upon an extract of the warrant issued and signed by the clerk of court.”.
10 In section 18(3) (penalty for breach of undertaking to appear), for the words “£200” there shall be substituted “level 3 on the standard scale”.
11 In section 19(1)(a) (intimation to a solicitor), for the words from “of” to the end there shall be substituted—
“(i) of the place where the person is being detained;
(ii) whether the person is to be liberated; and
(iii) if the person is not to be liberated, the date on which he is to be taken to court and the court to which he is to be taken;”.
12 Section 20(2) (record where accused does not emit declaration) shall cease to have effect.
13 In section 20B(9) (service of transcript of record of proceedings at examination)—
(a) for the words from “may”, where it first occurs, to “service”, where it first occurs, there shall be substituted “shall be served in such manner as may be prescribed by Act of Adjournal”; and
(b) for the words from “a post” to “letter” there shall be substituted “the relevant post office receipt”.
14 In each of sections 23 and 329 (remand and committal of persons under 21)—
(a) in paragraph (a) of subsection (1), for the words from “commit” to the end there shall be substituted “, instead of committing him to prison, commit him to the local authority in whose area the court is situated to be detained—
(i) where the court so requires, in secure accommodation within the meaning of the Social Work (Scotland) Act 1968; and
(ii) in any other case, in a suitable place of safety chosen by the authority;”; and
(b) in subsection (4), for the words from “and” in the second place where it occurs to the end there shall be substituted “to be detained—
(a) where the court so requires, in secure accommodation within the meaning of the Social Work (Scotland) Act 1968; and
(b) in any other case, in a suitable place of safety chosen by the authority.”.
15 In section 26 (bail before committal)—
(a) in subsection (2), for the words from “immediately” to “or” there shall be substituted “, on any occasion on which he is brought before the sheriff prior to his committal until liberated in due course of law, to apply”; and
(b) in subsection (3), the words “or justice” shall cease to have effect.
16 In section 31 (appeal in respect of bail), after subsection (4) there shall be inserted the following subsection—
“(4A) Where an applicant in an appeal under this section is under 21 years of age, section 23 of this Act shall apply to the High Court or, as the case may be, the Lord Commissioner of Justiciary when disposing of the appeal as it applies to a court when remanding or committing a person of the applicant’s age for trial or sentence.”.
17 In section 33 (liberation of applicant when appeal by public prosecutor)—
(a) in subsection (1), the words from “, or where” to “ninety-six hours,”; and
(b) in subsection (2), the words “by telegraph”,
shall cease to have effect.
18 For section 42 (procedure on resignation, death or removal of Lord Advocate) there shall be substituted the following section—
(1) All indictments which have been raised by a Lord Advocate shall remain effective notwithstanding his subsequently having died or demitted office and may be taken up and proceeded with by his successor.
(2) During any period when the office of Lord Advocate is vacant it shall be lawful to indict accused persons in the name of the Solicitor General then in office.
(3) The advocates depute shall not demit office when a Lord Advocate dies or demits office but shall continue in office until their successors receive commissions.
(4) The advocates depute and procurators fiscal shall have power, notwithstanding any vacancy in the office of Lord Advocate, to take up and proceed with any indictment which—
(a) by virtue of subsection (1) above, remains effective; or
(b) by virtue of subsection (2) above, is in the name of the Solicitor General.
(5) For the purposes of this Act, where, but for this subsection, demission of office by one Law Officer would result in the offices of both being vacant, he or, where both demit office on the same day, the person demitting the office of Lord Advocate shall be deemed to continue in office until the warrant of appointment of the person succeeding to the office of Lord Advocate is granted.
(6) The Lord Advocate shall enter upon the duties of his office immediately upon the grant of his warrant of appointment; and he shall as soon as is practicable thereafter take the oaths of office before any Secretary of State or any Lord Commissioner of Justiciary.”.
19 After section 48 there shall be inserted the following sections—
It shall be competent to include in one indictment both common law and statutory charges.
In an indictment the description of any offence in the words of the statute or order contravened, or in similar words, shall be sufficient.”.
20 In section 50 (latitude as to time and place), after subsection (3) there shall be inserted the following subsection—
“(4) Notwithstanding subsection (3) above, nothing in any rule of law shall prohibit the amendment of an indictment to include a time outwith the exceptional latitude if it appears to the court that the amendment would not prejudice the accused.”.
21 In section 54 (“money” to include coin, bank notes and post office orders), for the words from “all” to the end there shall be substituted “cheques, banknotes, postal orders, money orders and foreign currency”.
22 In subsection (2) of section 58 (authentication of deletion or correction on service copy of indictment etc.), for the word “or” in the fourth place where it occurs there shall be substituted— “shall be sufficiently authenticated by the initials of any procurator fiscal or of the person serving the same.
(3) Any deletion or correction made”.
23 After section 60 there shall be inserted the following section—
In any proceedings under the Merchant Shipping Acts it shall not be necessary to produce the official register of the ship referred to in the proceedings in order to prove the nationality of the ship, but the nationality of the ship as stated in the indictment shall, in the absence of evidence to the contrary, be presumed.”.
24 Sections 62 and 313 (mode of charging certain offences committed against two or more children under 17) shall cease to have effect.
25 In section 68 (notice of previous convictions), in each of subsections (2) and (4), the words “of Form No. 1 of Schedule 7 to the Criminal Justice (Scotland) Act 1949 or in the form” shall cease to have effect.
26 In section 69 (warrants for citation)—
(a) the existing provision shall become subsection (1);
(b) in that subsection—
(i) after the words “accused persons” there shall be inserted “, witnesses or jurors”;
(ii) the words from “and” in the third place where it occurs to “Act” in the fourth place where it occurs shall cease to have effect; and
(iii) the words from “The executions” to the end shall cease to have effect; and
(c) after that subsection there shall be inserted—
“(2) A witness may be cited by sending the citation to the witness by ordinary or registered post or by the recorded delivery service and a written execution in the form prescribed by Act of Adjournal or as nearly as may be in such form, purporting to be signed by the person who served such citation together with, where appropriate, the relevant post office receipt shall be sufficient evidence of such citation.”.
27 In section 72 (citation of jurors and witnesses)—
(a) the existing provision shall become subsection (1);
(b) in that subsection, after the word “shall” in the second place where it occurs there shall be inserted “, subject to subsection (2) below,”; and
(c) after that subsection there shall be inserted the following subsection—
“(2) A court shall not issue a warrant to apprehend a witness who fails to appear at a diet to which he has been duly cited unless the court is satisfied that the witness received the citation or that its contents came to his knowledge.”.
28 In section 73(1) (execution of citation of indictment), the words from “, unless” to the end shall cease to have effect.
29 In section 77 (alteration of trial diet), for paragraphs (a) and (b) there shall be substituted the words “two months”.
30 In section 78(1) (lodging of record copy of indictment and list of witnesses), for the words from “record” to the end there shall be substituted “prosecutor shall on or before the date of service of the indictment lodge the record copy of the indictment with the clerk of court before which the trial is to take place, together with a copy of the list of witnesses and a copy of the list of productions.”.
31 In section 79(1) (description of witnesses), for the words from “, with” to the end there shall be substituted “together with an address at which they can be contacted for the purposes of precognition.”.
32 In section 80(1) (objection to witnesses), after the word “accused” there shall be inserted “, where the case is to be tried in the sheriff court, at or before the first diet and, where the case is to be tried in the High Court,”.
33 In section 81 (examination by prosecutor of witnesses, etc. not included in lists lodged) after the word “address” there shall be inserted “as mentioned in section 79(1) above,”.
34 In section 82 (notice of special defence, incrimination etc.)—
(a) in subsection (1)—
(i) in paragraph (a), after the word “lodged” there shall be inserted “, where the case is to be tried in the sheriff court, at or before the first diet and, where the case is to be tried in the High Court,”; and
(ii) for paragraph (b) there shall be substituted—
“(b) the court, on cause shown, otherwise directs.”; and
(b) in subsection (2), for the words from “written notice” to “the court” there shall be substituted—
“(a) written notice of the names and addresses of such witnesses and of such productions shall have been given—
(i) where the case is to be tried in the sheriff court, to the procurator fiscal of the district of the trial diet at or before the first diet; and
(ii) where the case is to be tried in the High Court, to the Crown Agent at least ten clear days before the day on which the jury is sworn; or
(b) the court, on cause shown, otherwise directs, in which case it”.
35 For section 85 (45 jurors to be returned for trials), there shall be substituted the following section—
For the purposes of a trial, the sheriff principal shall return such number of jurors as he thinks fit or, in relation to a trial in the High Court, such other number as the Lord Justice Clerk or any Lord Commissioner of Justiciary may direct.”.
36 In section 93 (names of jurors to be inserted in one roll), for the word “designations” there shall be substituted “addresses”.
37 In section 100 (no exemptions by sex or marriage from liability to serve as juror), in subsection (1) the words from “but” to the end of the subsection, and subsections (2) and (3), shall cease to have effect.
38 In section 103(1) (pleas of guilty), after the word “he” where it first occurs there shall be inserted “shall do so in open court and”.
39 In section 108 (certain objections competent only at preliminary diet)—
(a) in subsection (1), after the word “section” there shall be inserted “75A(2) or”; and
(b) in subsection (2), after the word “section” in the second place where it occurs there shall be inserted “75A(2) or”.
40 Section 110 (where sentence delayed, original warrant of commitment stands) shall cease to have effect.
41 After section 114 there shall be inserted the following section—
(1) Where an accused person has been cited to attend a sitting of the sheriff court the prosecutor may, at any time before the commencement of his trial, apply to the sheriff to transfer the case to a sheriff court in any other district in that sheriffdom.
(2) On an application under subsection (1) above the sheriff may—
(a) after giving the accused or his counsel or solicitor an opportunity to be heard; or
(b) on the joint application of the parties,
make an order for the transfer of the case.”.
42 In section 124 (plea of guilty at trial diet), the proviso shall cease to have effect.
43 For section 125 (on plea of not guilty, jury to be balloted and sworn) there shall be substituted the following section—
Where the accused pleads not guilty, the clerk of court shall record that fact and proceed to ballot the jury.”.
44 In section 127 (procedure where trial does not take place)—
(a) in subsection (1), for the words “date of such trial diet” there shall be substituted “last day of the sitting in which the trial diet was to be held”;
(b) after subsection (1) there shall be inserted the following subsection—
“(1ZA) Without prejudice to subsection (1) above, where a trial diet has been deserted pro loco et tempore and the court has appointed a further trial diet to be held on a subsequent date at the same sitting the accused shall require to appear and answer the indictment at that further diet.”;
(c) in subsection (2), the words “Schedule N to the Criminal Procedure (Scotland) Act 1887 or in” shall cease to have effect; and
(d) after subsection (4) there shall be inserted the following subsection—
“(5) The warrant issued under section 69 of this Act shall be sufficient warrant for the citation of the accused and witnesses to any further diet appointed under this section.”.
45 In section 129 (procedure for selection of jurors), for the words from “which” to the end there shall be substituted “in such manner as shall be prescribed by Act of Adjournal, and the persons so chosen shall be the jury to try the accused, and their names shall be recorded in the minutes of the proceedings.”.
46 Section 132(2) (procedure in High Court trials where jurors chosen for one trial may continue to serve) shall cease to have effect.
47 In section 134 (provision for death or illness of jurors)—
(a) for the words “any juror is, through illness or for any other reason, unfit” there shall be substituted “it is for any reason inappropriate for any juror”; and
(b) for the words “or on behalf of the Lord Advocate” there shall be substituted “the prosecutor”.
48 In section 135 (clerk to state charge and swear jury)—
(a) the existing provision shall become subsection (1);
(b) in subsection (1), for the words from “it”, where it first occurs, to the end there shall be substituted “copies of the indictment shall be provided for each member of the jury without lists of witnesses or productions”; and
(c) at the end of subsection (1) there shall be inserted the following subsections—
“(2) Subject to subsection (3) below, where the accused has lodged a plea of special defence, the clerk of court shall, after informing the jury, in accordance with subsection (1) above, of the charge against the accused, and before administering the oath, read to the jury the plea of special defence.
(3) Where the presiding judge on cause shown so directs, the plea of special defence shall not be read over to the jury in accordance with subsection (2) above; and in any such case the judge shall inform the jury of the lodging of the plea and of the general nature of the special defence.
(4) Copies of a plea of special defence shall be provided for each member of the jury.”.
49 In section 140A(1)(b) (no case to answer), the words “were the offence charged the only offence so charged” shall cease to have effect.
50 For section 142 (evidence of the accused) there shall be substituted the following section—
Where, in any trial, the accused is to be called as a witness he shall be so called as the first witness for the defence unless the court, on cause shown, otherwise directs.”.
51 Section 144 (notice of spouse as witness) shall cease to have effect.
52 Section 145(4) (interruption of trial) shall cease to have effect.
53 Section 146 (sheriff’s notes of evidence) shall cease to have effect.
54 In each of sections 148 and 340 (examination of witnesses)—
(a) the existing provision shall become subsection (1); and
(b) after that subsection there shall be inserted the following subsections—
“(2) The judge may, on the motion of either party, on cause shown order that the examination of a witness for that party (“the first witness”) shall be interrupted to permit the examination of another witness for that party.
(3) Where the judge makes an order under subsection (2) above he shall, after the examination of the other witness, permit the recall of the first witness.”.
55 In section 150 (admissions and agreements as to evidence in solemn proceedings)—
(a) in subsection (1), the words “, where the accused is legally represented,” shall cease to have effect; and
(b) in subsection (2), for paragraphs (a) and (b) there shall be substituted the following paragraphs—
“(a) in the case of an admission, by the party making the admission or, if that party is the accused and he is legally represented, his counsel or solicitor; and
(b) in the case of an agreement, by the prosecutor and by the accused or, if he is legally represented, his counsel or solicitor”.
56 In section 151(2) (application to have all or part of record of proceedings at judicial examination withheld from jury)—
(a) after the words “competent for” there shall be inserted “the prosecutor or”; and
(b) for the words “the defence and for the prosecutor” there shall be substituted “either party”.
57 In section 153 (seclusion of jury, etc, after retiral)—
(a) subsection (1) shall cease to have effect; and
(b) in subsection (3)(b)(ii), the words from “(as” to the end shall cease to have effect.
58 In section 156 (interruption of trial to give direction to jury in preceding trial)—
(a) in subsection (1)(b), the words from “, as” to the end; and
(b) subsections (4) and (5),
shall cease to have effect.
59 In section 157 (interruption of trial for plea or sentence in another cause)—
(a) in subsection (1), the words “through his counsel”, “in which the panel has pleaded guilty under section 102 of this Act” and “(other than a trial for murder)”; and
(b) subsection (2),
shall cease to have effect.
60 Section 159(1) (previous convictions libelled as aggravations) and (3) (passing of sentence on second or subsequent conviction) and section 356(1) and (3) (equivalent provisions in relation to summary procedure) shall cease to have effect.
61 Section 160(3) (verdict as to whether previous convictions proved) shall cease to have effect.
62 In section 162(3) (proof of convictions), for the words “An official” there shall be substituted “A prison officer”.
63 Section 163 (extract conviction to be issued by clerk having record copy of indictment) shall cease to have effect.
64 In each of sections 166 and 362 (power to clear court while child giving evidence), in subsection (1), for the words from “members” to the end there shall be substituted—
“(a) members or officers of the court;
(b) parties to the case before the court, their counsel or solicitors or persons otherwise directly concerned in the case;
(c) bona fide representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous reports of the proceedings; or
(d) such other persons as the court may specially authorise to be present,
shall be excluded from the court during the taking of the evidence of that witness.”.
65 In section 174 (insanity in bar of trial or as ground of acquittal)—
(a) in subsection (2)—
(i) for the words “as aforesaid” in the first place where they occur there shall be substituted “on indictment with the commission of the offence”; and
(ii) after the word “and” in the second place where it occurs there shall be inserted “, if so,”; and
(b) subsections (3) and (4) shall cease to have effect.
66 In section 176 (requirements as to medical evidence)—
(a) in subsection (1), after the word “sections” there shall be inserted “174(1),”;
(b) in subsection (2), for the word “section” where it first occurs there shall be substituted “sections 174(1) and”; and
(c) in subsection (4), after the word “hospital” there shall be inserted “or, as respects a report for the purposes of section 174(1), remanded in custody”.
67 In section 178(3) (restriction orders), for the words “section 60(4)” there shall be substituted “section 60(3)”.
68 In each of sections 179(1) and 380(1) (power of court to adjourn case before sentence)—
(a) for the words “so adjourns the case” there shall be substituted “adjourns the case solely for that purpose”; and
(b) after the words “shall not” there shall be inserted “solely”.
69 After section 182 there shall be inserted the following—
Where a person is convicted of an offence (other than an offence the sentence for which is fixed by law) the court may, instead of or in addition to imposing a fine or a period of imprisonment, ordain the accused to find caution for good behaviour for a period not exceeding 12 months and to such amount as the court considers appropriate.”.
70 In subsection (7) of each of sections 183 and 384 (notification of probation order)—
(a) after the word “shall” there shall be inserted “(a)”;
(b) the words “, to the probationer,” shall cease to have effect; and
(c) at the end there shall be inserted— “; and
(b) cause a copy thereof to be given to the probationer or sent to him by registered post or by the recorded delivery service; and an acknowledgement or certificate of delivery of a letter containing such copy order issued by the Post Office shall be sufficient evidence of the delivery of the letter on the day specified in such acknowledgement or certificate.”.
71 In each of sections 186(1) and 387(1) (failure to comply with requirement of probation order), the words “on oath” shall cease to have effect.
72 Sections 190 and 391 (supplementary provisions as to probation: security for good behaviour) shall cease to have effect.
73 In section 191(4) (effect of probation and absolute discharge) the words “placed on probation or” and “probation order or” shall cease to have effect.
74 In each of sections 192 and 393 (probation reports), the words from “(other than” to “Act)” and the proviso shall cease to have effect.
75 In each of sections 196(1) and 402 (fines, etc. may be enforced in another district), the proviso shall cease to have effect.
76 Sections 225 (interlocutors to be signed by clerk), 226 (record copies to be inserted in books of adjournal of High Court) and 227 (indictment to be inserted in record book in sheriff court) shall cease to have effect.
77 In section 235 (applications in connection with appeals may be made orally or in writing), the words from “but in regard” to the end shall cease to have effect.
78 In section 236A(3) (judge’s report), for the words “and the parties” there shall be substituted “, the parties and, on such conditions as may be prescribed by Act of Adjournal, such other persons or classes of persons as may be so prescribed”.
79 Section 236C (signing of appeal documents) shall cease to have effect.
80 Section 237 (note of proceedings) shall cease to have effect.
81 In section 238 (bail pending appeal), in subsection (2), the words “or of any application for leave to appeal” and, in paragraphs (a)(i) and (b)(i), the words “or application” shall cease to have effect.
82 In section 239 (clerk to give notice of date of hearing)—
(a) in subsection (1), the words from “and” in the second place where it occurs to the end; and
(b) subsection (2),
Criminal Justice (Scotland) Act 1995