Office of Public Sector Information
PART I continued
(1) In section 162 of the 1975 Act (admissibility and proof of extract convictions in solemn proceedings), after subsection (3) there shall be inserted the following subsections—
“(4) Without prejudice to subsections (1) to (3) above, where proof of a previous conviction is competent in support of a substantive charge, any such conviction or an extract of it shall, if—
(a) it purports to relate to the accused and to be signed by the clerk of court having custody of the record containing the conviction; and
(b) a copy of it has been served on the accused not less than 14 days before the trial diet,
be sufficient evidence of the application of the conviction to the accused unless, within seven days of the date of service of the copy on him, he serves notice on the prosecutor that he denies that it applies to him.
(5) A copy of a conviction or extract conviction served under subsection (4) above shall be served on the accused in such manner as may be prescribed by Act of Adjournal, and a written execution purporting to be signed by the person who served the copy together with, where appropriate, the relevant post office receipt shall be sufficient evidence of service of the copy.”.
(2) In section 357 of that Act (previous convictions in summary proceedings), after subsection (5) there shall be inserted the following subsections—
“(6) Without prejudice to subsections (1) to (3) above, where proof of a previous conviction is competent in support of a substantive charge, any such conviction or an extract of it shall, if—
(a) it purports to relate to the accused and to be signed by the clerk of court having custody of the record containing the conviction; and
(b) a copy of it has been served on the accused not less than 14 days before the trial diet,
be sufficient evidence of the application of the conviction to the accused unless, within seven days of the date of service of the copy on him, he serves notice on the prosecutor that he denies that it applies to him.
(7) A copy of a conviction or extract conviction served under subsection (6) above shall be served on the accused in such manner as may be prescribed by Act of Adjournal, and a written execution purporting to be signed by the person who served the copy together with, where appropriate, the relevant post office receipt shall be sufficient evidence of service of the copy.”.
(1) Section 128 of the 1975 Act (death or illness of judge in solemn proceedings) shall be amended in accordance with subsections (2) and (3) below.
(2) For subsection (1) of that section there shall be substituted the following subsections—
“(1) Where the court is unable to proceed owing to the death, illness or absence of the presiding judge, the clerk of court may convene the court (if necessary) and—
(a) in a case where no evidence has been led, adjourn the diet and any other diet appointed for that sitting to—
(i) a time later the same day, or a date not more than seven days later, when he believes a judge will be available; or
(ii) a later sitting not more than two months after the date of the adjournment; or
(b) in a case where evidence has been led—
(i) adjourn the diet and any other diet appointed for that sitting to a time later the same day, or a date not more than seven days later, when he believes a judge will be available; or
(ii) with the consent of the parties, desert the diet pro loco et tempore.
(1A) Where a diet has been adjourned under sub-paragraph (i) of either paragraph (a) or paragraph (b) of subsection (1) above the clerk of court may, where the conditions of that subsection continue to be satisfied, further adjourn the diet under that sub-paragraph; but the total period of such adjournments shall not exceed seven days.
(1B) Where a diet has been adjourned under subsection (1)(b)(i) above the court may, at the adjourned diet—
(a) further adjourn the diet; or
(b) desert the diet pro loco et tempore.”.
(3) In subsection (2) of that section, for the words “(1)(c)” there shall be substituted “(1)(b)(ii) or (1B)(b)”.
(4) After section 331A of that Act there shall be inserted the following section—
(1) Where the court is unable to proceed owing to the death, illness or absence of the presiding judge, it shall be lawful for the clerk of court—
(a) where the diet has not been called, to convene the court and adjourn the diet;
(b) where the diet has been called but no evidence has been led, to adjourn the diet; and
(c) where the diet has been called and evidence has been led—
(i) with the agreement of the parties, to desert the diet pro loco et tempore; or
(ii) to adjourn the diet.
(2) Where, under subsection (1)(c)(i) above, a diet has been deserted pro loco et tempore, any new prosecution charging the accused with the same or any similar offence arising out of the same facts shall be brought within two months of the date on which the diet was deserted notwithstanding that any other time limit for the commencement of such prosecution has elapsed.
(3) For the purposes of subsection (2) above, a new prosecution shall be deemed to commence on the date on which a warrant to apprehend or to cite the accused is granted, if such warrant is executed without undue delay.”.
After section 337A of the 1975 Act there shall be inserted the following section—
(1) Without prejudice to section 338 of this Act, and subject to subsection (2) below, no part of a trial shall take place outwith the presence of the accused.
(2) If during the course of his trial an accused so misconducts himself that in the view of the court a proper trial cannot take place unless he is removed, the court may order—
(a) that he is removed from the court for so long as his conduct makes it necessary; and
(b) that the trial proceeds in his absence,
but if he is not legally represented the court shall appoint counsel or a solicitor to represent his interests during such absence.”.
Sections 141(1)(b) (prosecutor may not comment on failure of accused to give evidence in solemn proceedings) and 346(1)(b) (corresponding provision in relation to summary proceedings) of the 1975 Act shall cease to have effect.
After each of sections 217 and 430 of the 1975 Act there shall be inserted the following section as, respectively, section 217A and section 430A—
In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pled guilty to an offence, a court may take into account—
(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and
(b) the circumstances in which that indication was given.”.
(1) After section 254 of the 1975 Act there shall be inserted the following section—
(1) In disposing of an appeal under section 228(1)(b), (bb), (bc), (bd) or (c) or 228A of this Act the High Court may, without prejudice to any other power in that regard, pronounce an opinion on the sentence or other disposal or order which is appropriate in any similar case.
(2) Without prejudice to any rule of law, a court in passing sentence shall have regard to any relevant opinion pronounced under subsection (1) above.”.
(2) After section 455 of the 1975 Act there shall be inserted the following section—
(1) In disposing of an appeal under section 442(1)(a)(ii), (iia) or (iii), (b)(ii) or (c) of this Act the High Court may, without prejudice to any other power in that regard, pronounce an opinion on the sentence or other disposal or order which is appropriate in any similar case.
(2) Without prejudice to any rule of law, a court in passing sentence shall have regard to any relevant opinion pronounced under subsection (1) above.”.
(1) Section 62 of the [1990 c. 40.] Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (supervised attendance orders) shall be amended in accordance with subsections (2) to (7) below.
(2) In subsection (1), at the end there shall be inserted the words “and shall, subject to paragraph 1 of Schedule 6 to this Act, make such an order where subsection (3A) below applies”.
(3) In subsection (2)—
(a) for the words “with the consent” there shall be substituted “in respect”;
(b) in paragraph (a), for the words “time, being 10, 20, 30, 40, 50 or 60 hours” there shall be substituted “period, being a period of not less than 10 hours and not more than—
(i) where the amount of the fine, part or instalment which the offender has failed to pay does not exceed level 1 on the standard scale, 50 hours; and
(ii) in any other case, 100 hours”; and
(c) in paragraph (b), for the word “time” there shall be substituted “period”.
(4) In subsection (3)(a), for the word “16” there shall be substituted “18”.
(5) After subsection (3) there shall be inserted the following subsections—
“(3A) This subsection applies where—
(a) the court is a court prescribed for the purposes of this subsection by order made by the Secretary of State;
(b) the offender is of or over 18 years of age and is not serving a sentence of imprisonment;
(c) having been convicted of an offence, he has had imposed on him a fine which (or any part or instalment of which) he has failed to pay and the court, but for this section, would have imposed on him a period of imprisonment under section 407(1)(b) of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975 (power of court to impose imprisonment for non-payment of fine); and
(d) the fine, or as the case may be, the part or instalment, is of an amount not exceeding level 2 on the standard scale.
(3B) An order under subsection (3A)(a) above shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.”.
(6) After subsection (4) there shall be inserted the following subsection—
“(4A) The coming into force of a supervised attendance order shall have the effect of discharging the fine referred to in subsection (3)(b) or (3A)(c) above or, as the case may be, section 412A(3)(a) or 412B(1) of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975.”.
(7) In subsection (6), the following definition shall be inserted in the appropriate place in alphabetical order—
““imprisonment” includes detention;”.
(8) In Schedule 6 to that Act of 1990 (further provisions with respect to supervised attendance orders)—
(a) in paragraph 1(1)(a), after the word “persons” there shall be inserted “of a class which includes the offender”;
(b) in paragraph 4(2)(a), for the words from “as” to “made” in the second place where it occurs there shall be substituted— “not exceeding—
(i) in the case of a sheriff court, three months; and
(ii) in the case of a district court, 60 days,
as the court considers appropriate;”; and
(c) in paragraph 5(1)(d), for the words from “as” to “made” in the second place where it occurs there shall be substituted— “not exceeding—
(i) in the case of a sheriff court, three months; and
(ii) in the case of a district court, 60 days,
as the court considers appropriate;”.
(9) In section 194(2) of the 1975 Act, after the entry in respect of section 411 there shall be inserted—
“section 412A (supervised attendance orders in place of fines for 16 and 17 year olds);
section 412B (supervised attendance orders where court allows further time to pay;”.
(10) In section 407(1)(b) of that Act (imprisonment for non-payment of fine), after the word “may” there shall be inserted “, subject to section 62(1) of the [1990 c. 40.] Law Reform (Miscellaneous Provisions) (Scotland) Act 1990,”.
(11) After section 412 of that Act there shall be inserted the following sections—
(1) This section applies where a person of 16 or 17 years of age is convicted of an offence by a court of summary jurisdiction and the court considers that, but for this section, the appropriate sentence is a fine.
(2) Where this section applies, the court shall determine the amount of the fine and shall consider whether the person is likely to pay a fine of that amount within 28 days.
(3) If the court considers that the person is likely to pay the fine as mentioned in subsection (2) above, it shall—
(a) impose the fine; and
(b) subject to paragraph 1 of Schedule 6 to the [1990 c. 40.] Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (“the 1990 Act”), make a supervised attendance order in default of payment of the fine within 28 days.
(4) A supervised attendance order made under subsection (3)(b) above—
(a) shall come into force on such date, not earlier than 28 days after the making of the order, as may be specified in the order, unless the person pays the fine within that period;
(b) shall, for the purposes of Schedule 6 to the 1990 Act, be deemed to be made on the date when it comes into force.
(5) Where, before the coming into force of a supervised attendance order made under subsection (3)(b) above, the person pays part of the fine, the period specified in the order shall be reduced by the proportion which the part of the fine paid bears to the whole fine, the resulting figure being rounded up or down to the nearest 10 hours; but this subsection shall not operate to reduce the period to less than 10 hours.
(6) If the court considers that the person is not likely to pay the fine as mentioned in subsection (2) above, it shall, subject to paragraph 1 of Schedule 6 to the 1990 Act, make a supervised attendance order in respect of that person.
(7) Sections 395A to 398, 400 to 404 and 407 of this Act shall not apply in respect of a person to whom this section applies.
(8) For the purposes of any appeal or review, a supervised attendance order made under this section is a sentence.
(9) In this section “supervised attendance order” means an order made in accordance with section 62(2), (5) and (6) of the 1990 Act.
(1) Where a court, on an application to it under section 397(1) of this Act, allows a person further time for payment of a fine or instalments thereof it may, in addition, subject to paragraph 1 of Schedule 6 to the [1990 c. 40.] Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (“the 1990 Act”), impose a supervised attendance order in default of payment of the fine or any instalment of it on the due date.
(2) A supervised attendance order made under subsection (1) above —
(a) shall, if the person fails to pay the fine or any instalment of it on the due date, come into force on the day after the due date; and
(b) shall, for the purposes of Schedule 6 to the 1990 Act, be deemed to be made on the date when it comes into force.
(3) Where, before the coming into force of a supervised attendance order under subsection (1) above, the person pays part of the fine, the period specified in the order shall be reduced by the proportion which the part of the fine paid bears to the whole fine, the resulting figure being rounded up or down to the nearest 10 hours; but this subsection shall not operate to reduce the period to less than 10 hours.
(4) In this section “supervised attendance order” means an order made in accordance with section 62(2), (5) and (6) of the 1990 Act.”.
After subsection (1) of section 212A of the 1975 Act (supervised release orders) there shall be inserted the following subsection—
“(1A) A court shall, before making an order under subsection (1) above, consider a report by a relevant officer of a local authority about the offender and his circumstances and, if the court thinks it necessary, hear that officer.”.
(1) After section 179 of the 1975 Act there shall be inserted the following section—
Where a person specified in section 27(1)(b)(i) to (vi) of the [1968 c. 49.] Social Work (Scotland) Act 1968 commits an offence, the court shall not dispose of the case without obtaining from the local authority in whose area the person resides a report as to—
(a) the circumstances of the offence; and
(b) the character of the offender, including his behaviour while under the supervision, or as the case may be subject to the order, so specified in relation to him.”.
(2) After section 380 of that Act there shall be inserted the following section—
(1) Where a person specified in section 27(1)(b)(i) to (vi) of the [1968 c. 49.] Social Work (Scotland) Act 1968 commits an offence, the court shall not dispose of the case without obtaining from the local authority in whose area the person resides a report as to—
(a) the circumstances of the offence; and
(b) the character of the offender, including his behaviour while under the supervision, or as the case may be subject to the order, so specified in relation to him.
(2) In subsection (1) above, “the court” does not include a district court.”.
(1) In section 183(5A) of the 1975 Act (probation order)—
(a) after the word “where” there shall be inserted “an offender has been convicted of an offence punishable by imprisonment and”; and
(b) in paragraph (a), the words “has committed an offence punishable by imprisonment and” shall cease to have effect.
(2) For paragraph (b) of subsection (2) of each of sections 186 and 387 of that Act (failure to comply with requirement of probation orders) there shall be substituted the following paragraph—
“(b) sentence the offender for the offence for which the order was made;”.
(3) In section 384 of that Act (probation)—
(a) in subsection (1)—
(i) for the words “charged before a court of summary jurisdiction with” there shall be substituted “convicted of”;
(ii) the words from “and”, where it first occurs, to “offence”, in the third place where it occurs, shall cease to have effect; and
(iii) for the words from “, without” to “applies),” there shall be substituted “instead of sentencing him”;
(b) in subsection (5A)—
(i) after the word “where” there shall be inserted “an offender has been convicted of an offence punishable by imprisonment and”; and
(ii) in paragraph (a), the words “has committed an offence punishable by imprisonment and” shall cease to have effect; and
(c) in subsection (6), the words “convicted of and” shall cease to have effect.
(1) In each of sections 184 and 385 of the 1975 Act (probation orders requiring treatment for mental condition)—
(a) in subsection (1), after the word “practitioner”, in the second place where it occurs, there shall be inserted “or chartered psychologist”; and
(b) in each of subsections (2)(c), (5) and (5B)(b), after the word “practitioner” there shall be inserted “or chartered psychologist”.
(2) In section 462(1) of that Act (interpretation), at the appropriate place, there shall be inserted the following definition—
““chartered psychologist” means a person for the time being listed in the British Psychological Society’s Register of Chartered Psychologists;”.
(1) After subsection (2) of section 187 of the 1975 Act (commission of further offence while on probation) there shall be inserted the following subsections—
“(3) Where—
(a) a court has, under section 183(5A) of this Act, included in a probation order a requirement that an offender shall perform unpaid work; and
(b) the offender is convicted of an offence committed in the circumstances mentioned in subsection (4) below,
the court which sentences him for the offence shall, in determining the appropriate sentence for that offence, have regard to the fact that the offence was committed in those circumstances.
(4) The circumstances referred to in subsection (3) above are that the offence was committed—
(a) during the period that the offender was subject to a requirement to perform unpaid work or within the period of three months following the expiry of that period; and
(b) in any place where the unpaid work was being or had previously been performed.
(5) The court shall not, under subsection (3) above, have regard to the fact that the offence was committed in the circumstances mentioned in subsection (4) above unless that fact is libelled in the indictment or, as the case may be, specified in the complaint.”.
(2) After subsection (2) of section 388 of that Act (commission of further offence while on probation) there shall be inserted the following subsections—
“(3) Where—
(a) a court has, under section 384(5A) of this Act, included in a probation order a requirement that an offender shall perform unpaid work; and
(b) the offender is convicted of an offence committed in the circumstances mentioned in subsection (4) below,
the court which sentences him for the offence shall, in determining the appropriate sentence for that offence, have regard to the fact that the offence was committed in those circumstances.
(4) The circumstances referred to in subsection (3) above are that the offence was committed—
(a) during the period that the offender was subject to a requirement to perform unpaid work or within the period of three months following the expiry of that period; and
(b) in any place where the unpaid work was being or had previously been performed.
(5) The court shall not, under subsection (3) above, have regard to the fact that the offence was committed in the circumstances mentioned in subsection (4) above unless that fact is libelled in the indictment or, as the case may be, specified in the complaint.”.
(3) After section 5 of the [1978 c. 49.] Community Service by Offenders (Scotland) Act 1978 there shall be inserted the following section—
(1) Where—
(a) a court has made a community service order under section 1(1) of this Act in respect of an offender; and
(b) the offender is convicted of an offence committed in the circumstances mentioned in subsection (2) below,
the court which sentences him for that offence shall, in determining the appropriate sentence for that offence, have regard to the fact that the offence was committed in those circumstances.
(2) The circumstances referred to in subsection (1) above are that the offence was committed—
(a) during the period when the community service order was in force or within the period of three months following the expiry of that order; and
(b) in any place where unpaid work under the order was being or had previously been performed.
(3) The court shall not, under subsection (1) above, have regard to the fact that the offence was committed in the circumstances mentioned in subsection (2) above unless that fact is libelled in the indictment or, as the case may be, specified in the complaint.”.
After section 439 of the 1975 Act there shall be inserted the following section—
(1) Without prejudice to section 439 of this Act, where, on an application in accordance with subsection (2) below, the High Court is satisfied that a record of conviction or sentence in summary proceedings inaccurately records the identity of any person, it may authorise the clerk of the court which convicted or, as the case may be, sentenced the person to correct the record.
(2) An application under subsection (1) above shall be made after the determination of the summary prosecution and may be made by any party to the summary proceedings or any other person having an interest in the correction of the alleged inaccuracy.
(3) The High Court shall order intimation of an application under subsection (1) above to such persons as it considers appropriate and shall not determine the application without affording to the parties to the summary proceedings and to any other person having an interest in the correction of the alleged inaccuracy an opportunity to be heard.
(4) The power of the High Court under this section may be exercised by a single judge of the High Court in the same manner as it may be exercised by the High Court, and subject to the same provisions.”.
(1) In section 228(1) of the 1975 Act (right of appeal), after the word “may” there shall be inserted “, with leave granted in accordance with section 230A of this Act,”.
(2) After section 230 of that Act there shall be inserted the following section—
(1) The decision whether to grant leave to appeal for the purposes of section 228(1) of this Act shall be made by a judge of the High Court who shall—
(a) if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and
(b) in any other case—
(i) refuse leave to appeal and give reasons in writing for the refusal; and
(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.
(2) The documents referred to in subsection (1) above are—
(a) the note of appeal lodged under section 233(1)(a) of this Act;
(b) in a case to which section 236 of this Act applies, the certified copy or, as the case may be, the record of the proceedings at the trial;
(c) where the judge who presided at the trial furnishes a report under section 236A of this Act, that report; and
(d) where, by virtue of section 275(1) of this Act, a transcript of the charge to the jury of the judge who presided at the trial is delivered to the Clerk of Justiciary, that transcript.
(3) A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (4) below without an application to the High Court for leave to appeal having been lodged by the appellant under that subsection.
(4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (10) below, apply to the High Court for leave to appeal.
Criminal Justice (Scotland) Act 1995