Office of Public Sector Information

shall cease to have effect.

83 In section 240 (appellant may be present at hearing), the words from “except” where it first occurs to the end shall cease to have effect.

84 Section 246 (sittings of the High Court to be arranged by Lord Justice General) shall cease to have effect.

85 In section 254 (disposal of appeals)—

(a) in subsection (4)(b), for the words “and ordering” to the end there shall be substituted “and—

(i) making, in respect of the appellant, any order mentioned in section 174ZC(2)(a) to (d) of this Act; or

(ii) making no order.”; and

(b) for subsection (5) there shall be substituted the following subsection—

“(5) Subsections (3) and (4) of section 174ZC of this Act shall apply to an order made under subsection (4)(b)(i) above as they apply to an order made under subsection (2) of that section.”.

86 After section 254A there shall be inserted the following section—

“254B Convictions not to be quashed on certain grounds

No conviction, sentence, judgment, order of court or other proceeding whatsoever in or for the purposes of solemn proceedings under this Act—

(a) shall be quashed for want of form; or

(b) where the accused had legal assistance in his defence, shall be suspended or set aside in respect of any objections to—

(i) the relevancy of the indictment, or the want of specification therein; or

(ii) the competency or admission or rejection of evidence at the trial in the inferior court,

unless such objections were timeously stated.”.

87 Section 256 (summary dismissal of frivolous or vexatious appeals) shall cease to have effect.

88 In section 257 (failure to appear at hearing), for the words from the beginning to “where” in the second place where it occurs there shall be substituted— “Where—

(a) intimation of the diet appointed for the hearing of an appeal has been made to the appellant;

(b) no appearance is made by or on behalf of the appellant at the diet; and

(c)”.

89 Section 259 (continuation of hearing) shall cease to have effect.

90 In section 263 (prerogative of mercy), after subsection (2) there shall be inserted the following subsection—

“(3) This section shall apply in relation to a finding under section 174ZA(2) and an order under section 174ZC(2) of this Act as it applies, respectively, in relation to a conviction and a sentence.”.

91 In section 263A (power of Lord Advocate to refer point of law for opinion of High Court)—

(a) in subsection (1), after the word “acquitted” there shall be inserted “or convicted”; and

(b) in subsection (5), after the word “acquittal” there shall be inserted “or, as the case may be, conviction”.

92 In section 264 (disqualification, forfeiture etc.)—

(a) in each of subsections (1) and (2), after the words “section 228(1)(b)” there shall be inserted “, (bb), (bc) or (bd)”; and

(b) after subsection (3) there shall be inserted the following subsection—

“(4) Where, upon conviction, a fine has been imposed on a person or a compensation order has been made against him under section 58 of the Criminal Justice (Scotland) Act 1980, then, for a period of four weeks from the date of the verdict against such person or, in the event of an intimation of intention to appeal (or in the case of an appeal under section 228(1)(b), (bb), (bc) or (bd) or 228A of this Act a note of appeal) being lodged under this Part of this Act, until such appeal, if it is proceeded with, is determined,—

(a) the fine or compensation order shall not be enforced against that person and he shall not be liable to make any payment in respect of the fine or compensation order; and

(b) any money paid by that person under the compensation order shall not be paid by the clerk of court to the person entitled to it under section 60(1) of the Act of 1980.”.

93 In section 265 (fines and caution)—

(a) in subsection (1), for the word “thereto” there shall be substituted “to the conviction or sentence”; and

(b) subsections (3) and (5) shall cease to have effect.

94 In section 268 (reckoning of time spent on bail pending appeal), in subsection (4)—

(a) after the word “safety” in the first place where it occurs there shall be inserted “or, as respects a child sentenced to be detained under section 206 of this Act, the place directed by the Secretary of State”; and

(b) after the word “safety” in the second place where it occurs there shall be inserted “or, as respects such a child, place directed by the Secretary of State”.

95 In section 269 (extract convictions), after the words “section 228(1)(b)” there shall be inserted “, (bb), (bc), or (bd)”.

96 In section 270 (release of documents, productions etc. after trial), the following provisions shall cease to have effect—

(a) in subsection (2), the words from “(or any” to “note of appeal)” where first occurring and from “(or in the case” to “note of appeal)” where second occurring;

(b) in subsection (3), the words from “(or in the case” to “note of appeal)”; and

(c) in subsection (4), the words from “(or in the case” to “note of appeal)”.

97 Sections 272 (note to be kept of appeal) and 273 (register of appeals) shall cease to have effect.

98 In section 274(5)(e) (record of proceedings at trial), for the words “summing up by the judge” there shall be substituted “judge’s charge to the jury”.

99 Section 276 (declaration administered to shorthand writer) shall cease to have effect.

100 In section 277(2) (non-compliance with certain provisions may be waived), the words “section 236C”, “section 237”, “section 246”, “section 259”, “section 272” and “section 273” shall cease to have effect.

101 Section 282 (power to make Acts of Adjournal: solemn procedure) shall cease to have effect.

102 For subsection (1) of section 283 (application of Part II of that Act) there shall be substituted the following subsections—

“(1) This Part of this Act applies to summary proceedings in respect of any offence which might prior to the passing of this Act, or which may under the provisions of this or any Act, whether passed before or after this Act, be tried summarily.

(1A) Without prejudice to subsection (1) above, this Part of this Act also applies to procedure in all courts of summary jurisdiction in so far as they have jurisdiction in respect of—

(a) any offence or the recovery of a penalty under any enactment or rule of law which does not exclude summary procedure as well as, in accordance with section 196 of this Act, to the enforcement of a fine imposed in solemn proceedings; and

(b) any order ad factum praestandum, or other order of court or warrant competent to a court of summary jurisdiction.”.

103 Section 289D(1A)(d) (power to alter sums specified in section 435(e) of that Act) shall cease to have effect.

104 In section 296 (police liberation or detention of children arrested), in subsections (1) and (2), the words “sitting summarily” in each place where they occur shall cease to have effect.

105 In section 300 (appeal in respect of bail)—

(a) after subsection (3) there shall be inserted the following subsection—

“(3A) Where an applicant in an appeal under this section is under 21 years of age, section 329 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.”; and

(b) in subsection (4)—

(i) the words from “, or where” to “96 hours” shall cease to have effect; and

(ii) for the word “periods” there shall be substituted “period”.

106 For section 305 (intimation to a solicitor) there shall be substituted the following section—

“305 Right of accused to have access to solicitor

(1) Where any person has been arrested on any criminal charge, such person shall be entitled immediately upon such arrest—

(a) to have intimation sent to a solicitor that his professional assistance is required by such a person and informing him—

(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;

(b) to be told what rights there are under paragraph (a) above and subsections (2) and (3) below.

(2) Such solicitor shall be entitled to have a private interview with the person accused before he is examined on declaration, and to be present at such examination.

(3) It shall be in the power of the sheriff or justice to delay such examination for a period not exceeding 48 hours from and after the time of such person’s arrest, in order to allow time for the attendance of such solicitor.”.

107 In section 309(1) (forms of procedure in summary proceedings), the words “Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 or in” shall cease to have effect.

108 In section 310 (incidental applications)—

(a) the words “Part I of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 or in” shall cease to have effect; and

(b) after the word “open” there shall be inserted “shut and”.

109 In section 311 (complaint)—

(a) in subsection (1), the words from “in” where it first occurs to the end shall cease to have effect; and

(b) subsections (4) and (5) shall cease to have effect.

110 In section 312 (form of charge in complaint)—

(a) in paragraph (f), at the end there shall be inserted the words “provided also that nothing in the foregoing provisions of this paragraph or in any rule of law shall prohibit the amendment of a complaint to include a time outwith the exceptional latitude if it appears to the court that the amendment would not prejudice the accused;”; and

(b) in paragraph (j), for the words from “all” to the end there shall be substituted “cheques, banknotes, postal orders, money orders and foreign currency;”.

111 In section 314 (orders of court on complaint)—

(a) in subsection (1)(d), the words “or interim order” shall cease to have effect; and

(b) after subsection (4) there shall be inserted the following subsection—

“(4A) Where all the parties join in an application under subsection (4) above, the court may proceed under that subsection without hearing the parties.”.

112 In section 315(2) (citation), the words “Part IV of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 or in” shall cease to have effect.

113 In section 316(3) (manner of citation of accused)—

(a) after the word “accused” in the first place where it occurs there shall be inserted “or a witness”;

(b) after the words “prosecutor and” there shall be inserted—

“(a) in the case of the accused,”;

(c) after the word “service” there shall be inserted— “; and

(b) in the case of a witness, sent by ordinary post,”; and

(d) after the word “accused” in the second place where it occurs there shall be inserted “or witness”.

114 In section 318(2) (citation of offender), the words “Part IV of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 and the corresponding forms contained in” shall cease to have effect.

115 In section 319(1) (citation by post), the words “other than a witness” shall cease to have effect.

116 In section 320 (apprehension of witness), after the word “may” where it first occurs there shall be inserted “, if it is satisfied that he received the citation or that its contents came to his knowledge,”.

117 In section 321 (warrants of apprehension and search)—

(a) in subsection (1), the words “Part IV of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 or in” shall cease to have effect;

(b) in subsection (3), the words “either by way of trial or by way of remit to another court” shall cease to have effect;

(c) in subsection (5), for the words from “the date” to the end there shall be substituted—

“(a) the date fixed for the hearing of the case; or

(b) the date when security to the amount fixed under subsection (6) below is found,

whichever is the earlier.” ; and

(d) after subsection (5), there shall be inserted the following subsection—

“(6) A witness apprehended under a warrant under section 320 of this Act shall, wherever practicable, be brought immediately by the officer of law who executed that warrant before a justice, who shall fix such sum as he considers appropriate as security for the appearance of the witness at all diets.”.

118 In section 335(1) (amendment of complaint), the words “penalty or” shall cease to have effect.

119 Section 336 (record of plea of guilty) shall cease to have effect.

120 In section 338(1) (failure of accused to appear), after the word “cited” where it first occurs there shall be inserted “(other than a diet which, by virtue of section 337A(3) of this Act, he is not required to attend)”.

121 In section 339 (alibi), for the words “prior to the examination of the first witness for the prosecution” there shall be substituted “at any time before the first witness is sworn”.

122 In section 344(1) (punishment of witness for contempt), the words “or to produce documents in his possession when required by the court,” shall cease to have effect.

123 Section 345 (administration of oath to same witness in case at same diet) shall cease to have effect.

124 For section 347 (evidence of the accused) there shall be substituted the following section—

“347 Evidence of the accused

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.”.

125 In section 352(2) (application to have all or part of record of proceedings at judicial examination not admitted as evidence)—

(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”.

126 In section 354(1) (admissions and agreements as to evidence in summary proceedings), the proviso shall cease to have effect.

127 In section 357 (proof of convictions)—

(a) in subsection (1)(a), the words “Form No. 2 or 3 of Part III of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 or of” shall cease to have effect;

(b) in subsection (2)—

(i) for the words “An official” there shall be substituted “A prison officer”; and

(ii) for the word “official” in the second place where it occurs there shall be substituted “prison officer”; and

(c) subsection (4) shall cease to have effect.

128 In section 359 (record of summary proceedings), after the words “than the complaint” there shall be inserted “, or a copy of the complaint certified as true by a procurator fiscal”.

129 Section 360 (proceedings written or printed) shall cease to have effect.

130 In section 360A (interruption of summary proceedings for verdict in earlier trial)—

(a) in subsection (1)(b), the words from “as” to the end of the paragraph; and

(b) subsection (2),

shall cease to have effect.

131 In section 366 (procedure where sheriff sits summarily in respect of offence by child)—

(a) in subsection (1)(c), for the words “newspapers or news agencies” there shall be substituted “news gathering or reporting organisations present for the purpose of contemporaneous reports of the proceedings”; and

(b) subsection (2) shall cease to have effect.

132 In section 375(3) (insanity in bar of trial), for the word “called” there shall be substituted “sworn”.

133 In section 376 (power of court to order hospital admission or guardianship)—

(a) subsection (2) shall cease to have effect; and

(b) in subsection (3), for the words “as aforesaid” there shall be substituted “summarily in the sheriff court with an act or omission constituting an offence”.

134 In section 377 (requirements as to medical evidence)—

(a) in subsection (1), after the word “sections” there shall be inserted “375(2),”;

(b) in subsection (2), for the word “section” in the first place where it occurs there shall be substituted “sections 375(2) and”; and

(c) in subsection (4), after the word “hospital” there shall be inserted “or, as respects a report for the purposes of section 375(2), remanded in custody”.

135 In section 379(3) (restriction orders), for the words “section 62(1)” there shall be substituted “section 60(3)”.

136 In section 392 (effects of probation and absolute discharge on right to appeal)—

(a) in subsection (4), the words “placed on probation or” shall cease to have effect; and

(b) in subsection (5), the words “placed on probation or” and “probation order or” shall cease to have effect.

137 In section 396(7) (time for payment of fine), the words “, subject to any rules under this Part of this Act” shall cease to have effect.

138 In section 398(1) (restriction on imprisonment after fine or caution)—

(a) after the word “fine” in the second place where it occurs there shall be inserted “or, as the case may be, to find caution”; and

(b) after the word “paid” there shall be inserted “or, as the case may be, caution has not been found”.

139 In section 406 (substitution of custody for imprisonment where a child defaults on fine), the words “damages or expenses,” shall cease to have effect.

140 In section 408 (discharge from imprisonment to be specified), for the words “for payment of a fine or for finding of” there shall be substituted “in default of payment of a fine or on failure to find”.

141 In section 413(1) (detention of children in residential care)—

(a) after the word “authority” in the first place where it occurs there shall be inserted “for such period not exceeding one year as may be specified in the order”; and

(b) the words from “and shall” to the end shall cease to have effect.

142 In section 430 (consecutive sentences)—

(a) in subsection (1), the words “Part V of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 or in” shall cease to have effect; and

(b) for subsection (4) there shall be substituted the following subsection—

“(4) A court of summary jurisdiction may frame—

(a) a sentence following on conviction; or

(b) an order for committal in default of payment of any sum of money or for contempt of court,

so as to take effect on the expiry of any previous sentence or order which, at the date of the later conviction or order, the accused is undergoing.”.

143 In section 432(1) (deferred sentence), the words from “and”, where it second occurs, to the end shall cease to have effect.

144 Section 435 (expenses) shall cease to have effect.

145 In section 440 (extract sufficient warrant for imprisonment), the words “Part V of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 or in” shall cease to have effect.

146 In section 441 (provision for court comprising more than one judge), the words from “, although” to “place,” shall cease to have effect.

147 In section 443A (disqualification, forfeiture etc.), after subsection (2) there shall be inserted the following subsection—

“(3) Where, upon conviction, a fine has been imposed upon a person or a compensation order has been made against him under section 58 of the Criminal Justice (Scotland) Act 1980—

(a) the fine or compensation order shall not be enforced against him and he shall not be liable to make any payment in respect of the fine or compensation order; and

(b) any money paid under the compensation order shall not be paid by the clerk of court to the entitled person under section 60(1) of the Act of 1980,

pending the determination of any appeal against conviction or sentence (or disposal or order).”.

148 In section 444(1)(b) (contents of application for stated case), for the words “a statement of that fact” there shall be substituted “the ground of appeal against that sentence or disposal or order”.

149 In section 446 (procedure in relation to appeal by stated case where appellant in custody)—

(a) in subsection (4), at the end there shall be inserted the words “or, on the application of the appellant, such earlier date as the court thinks fit, not being a date later than the date of expiry of any term or terms of imprisonment imposed subsequently to the conviction appealed against”;

(b) in subsection (5)—

(i) after the words “person is” there shall be inserted “in custody or”; and

(ii) for the words “the term” there shall be substituted “any term”; and

(c) after subsection (5) there shall be inserted the following subsection—

“(6) The court shall not make an order under subsection (5) above to the effect that the sentence or, as the case may be, unexpired portion of the sentence shall run other than concurrently with the subsequently imposed term of imprisonment without first notifying the appellant of its intention to do so and considering any representations made by him or on his behalf.”.

150 In section 451(3) (computation of time) after the words “442(1)(a)(i)” there shall be inserted “or (in so far as it is against conviction) (iii)”.

151 (1) Section 453 (prosecutor’s consent to or application for setting aside of conviction) shall be amended as follows.

(2) In subsection (1)—

(a) at the beginning there shall be inserted “Without prejudice to section 442(1)(b) or (c) of this Act,”;

(b) in paragraph (a)—

(i) for the words “442(1)(a)(i) or (iii)” there shall be substituted “442(1)(a)”; and

(ii) after the word “conviction” there shall be inserted “or sentence or, as the case may be, conviction and sentence (“sentence” being construed in this section as including disposal or order)”; and

(c) in paragraph (b)—

(i) after the word “founded” there shall be inserted “or the sentence imposed following such conviction”; and

(ii) after the word “conviction” in the second place where it occurs there shall be inserted “or sentence or, as the case may be, conviction and sentence”.

(3) In subsection (4)—

(a) in paragraph (a)—

(i) after the word “conviction” where it first occurs, there shall be inserted “or the sentence, or both,”;

(ii) the word “and” at the end of sub-paragraph (i) shall cease to have effect;

(iii) at the end of sub-paragraph (ii) there shall be inserted— “; and

(iii) where the sentence is set aside, pass another (but not more severe) sentence;”; and

(b) in paragraph (b), after the word “conviction” there shall be inserted “or sentence, or, as the case may be conviction and sentence,”.

152 In section 453B (appeals against sentence only), after subsection (4) there shall be inserted the following subsection—

“(4A) Subject to subsection (4) above, the report mentioned in subsection (3)(b) above shall be available only to the High Court, 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.”.

153 In section 453D (disposal of appeal where appellant insane)—

(a) in subsection (1)(b), for the words “and ordering” to the end there shall be substituted “and—

(i) making, in respect of the appellant, any order mentioned in section 375ZC(2)(a) to (d) of this Act; or

(ii) making no order.”; and

(b) for subsection (2) there shall be substituted the following subsection—

“(2) Subsection (3) of section 375ZC of this Act shall apply to an order made under subsection (1)(b)(i) above as it applies to an order made under subsection (2) of that section.”.

154 In section 454(1) (convictions not to be quashed on certain grounds), the words “at the trial by the solicitor of the accused” shall cease to have effect.

155 Section 457 (power to make Acts of Adjournal: summary procedure) shall cease to have effect.

156 Before section 457A there shall be inserted the following section—

“457ZA Acts of Adjournal

(1) The High Court may by Act of Adjournal—

(a) regulate the practice and procedure in relation to criminal procedure; and

(b) make such rules and regulations as may be necessary or expedient to carry out the purposes and accomplish the objects of any enactment (including an enactment in this Act) in so far as it relates to criminal procedure,

provided that no rule, regulation or provision which affects the governor or any other officer of a prison shall be made by any such Act of Adjournal except with the consent of the Secretary of State.

(2) The High Court may by Act of Adjournal modify, amend or repeal any enactment (including an enactment in this Act) in so far as that enactment relates to matters with respect to which an Act of Adjournal may be made under subsection (1) above.”.

157 (1) Section 462 (interpretation) shall be amended as follows.

(2) In subsection (1)—

(a) at the appropriate places, there shall be inserted the following definitions—

““examination of facts” means an examination of facts held under section 174ZA or 375ZA of this Act;”;

““governor” means, in relation to a contracted out prison within the meaning of section 106(4) of the Criminal Justice and Public Order Act 1994, the director of the prison;”; and

““prison officer” and “officer of a prison” means, in relation to a contracted out prison within the meaning of section 106(4) of the Criminal Justice and Public Order Act 1994, a prisoner custody officer within the meaning of section 114(1) of that Act;”; and

(b) in the definition of “officer of law”, after paragraph (ii) there shall be inserted the following paragraph—

“(iia) any person who is employed under section 9 of the Police (Scotland) Act 1967 for the assistance of the constables of a police force and who is authorised by the chief constable of that police force in relation to service and execution as mentioned above;”; and

(c) in the definition of “prosecutor”, the words “private prosecutor,” in the second place where they occur shall cease to have effect.

(3) In subsection (6), for the words “Great Britain” there shall be substituted “the United Kingdom”.

(4) Subsection (10) shall cease to have effect.

158 In Schedule 5 (discharge and amendment of probation orders), in paragraph 4—

(a) after the word “practitioner” where it first occurs there shall be inserted “or chartered psychologist”; and

(b) after the word “practitioner” where it second occurs there shall be inserted “or psychologist”.