Office of Public Sector Information
PART 2 continued
(1) In section 180 (leave to appeal against conviction etc.) of the 1995 Act—
(a) in subsection (3)—
(i) after the word “below” there is inserted “(and if that period is extended under subsection (4A) below before the period being extended expires, until the expiry of the period as so extended)”,
(ii) for the words “that subsection” there is substituted “subsection (4) below”,
(b) after subsection (4) there is inserted—
“(4A) The High Court may, on cause shown, extend the period of 14 days mentioned in subsection (4) above, or that period as extended under this subsection, whether or not the period to be extended has expired (and if that period of 14 days has expired, whether or not it expired before section 25(1) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) came into force).”.
(2) In section 186 (appeals against sentence only) of that Act, in subsection (5), for the words from the beginning to “may” there is substituted “The sheriff principal of the sheriffdom in which the judgment was pronounced may, on cause shown,”.
(3) In section 187 (leave to appeal against sentence) of that Act—
(a) in subsection (2)—
(i) after the word “below” there is inserted “(and if that period is extended under subsection (3A) below before the period being extended expires, until the expiry of the period as so extended)”,
(ii) for the words “that subsection” there is substituted “subsection (3) below”,
(b) after subsection (3) there is inserted—
“(3A) The High Court may, on cause shown, extend the period of 14 days mentioned in subsection (3) above, or that period as extended under this subsection, whether or not the period to be extended has expired (and if that period of 14 days has expired, whether or not it expired before section 25(3) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) came into force).”.
(4) In section 194 (computation of time) of that Act, in subsection (2), for the words from the beginning to “may” there is substituted “The sheriff principal of the sheriffdom in which the judgment was pronounced may, on cause shown,”.
In section 65(3)(b) (prevention of delay in trials) of the 1995 Act, for the words “the period of” there is substituted “either or both of the periods of 11 and”.
(1) In section 90B of the 1995 Act, after subsection (2) there is inserted—
“(2A) Whenever the court makes an order under subsection (1) above, it shall state the reasons for the terms of the order.”.
(2) In section 90C (breach of bail under section 90B(1)(b)) of that Act, after subsection (2) there is inserted—
“(2A) In any proceedings in relation to an offence under subsection (1) above, the fact that (as the case may be) a person—
(a) was on bail;
(b) was subject to any particular condition of bail;
(c) failed to appear at a diet;
(d) was cited to a diet,
shall, unless challenged by giving notice of a preliminary objection in accordance with section 71(2) or 72(6)(b)(i) of this Act, be held as admitted.”.
(3) In section 90D (review of orders under section 90B(1)(a) or (b)) of that Act—
(a) in subsection (1), the words “, on cause shown” are repealed,
(b) in subsection (2)(a), the words “and on cause shown” are repealed,
(c) in subsection (3), for the words “(2)(b) above unless the” there is inserted “(1) or (2) above unless—
(a) in the case of an application by the witness, the circumstances of the witness have changed materially; or
(b) in that or any other any case, the witness or”.
In section 70 (proceedings against bodies corporate) of the 1995 Act, for subsection (8) there is substituted—
“(8) In subsection (4) above, “representative” means—
(a) in the case of a body corporate (other than a limited liability partnership), the managing director, secretary or other person in charge, or locally in charge, of its affairs;
(b) in the case of a limited liability partnership, a member of the partnership;
(c) in either case, an employee of the body duly appointed by it for the purpose of the proceedings.
(9) For the purposes of subsection (8)(c) above, a statement—
(a) in the case of a body corporate (other than a limited liability partnership), purporting to be signed by an officer of the body;
(b) in the case of a limited liability partnership, purporting to be signed by a member of the partnership,
to the effect that the person named in the statement has been appointed as the representative for the purposes of any proceedings to which this section applies is sufficient evidence of such appointment.”.
In section 85 (juries: citation and attendance of jurors) of the 1995 Act, after subsection (4) there is inserted—
“(4A) Citation of a juror may also be effected by an electronic citation which is sent—
(a) by or on behalf of the sheriff clerk; and
(b) by means of electronic communication,
to the home or business email address of the juror.
(4B) Citation under subsection (4A) above is a legal citation if the sheriff clerk possesses a legible version of an electronic communication which—
(a) is signed by electronic signature by the person who signed the citation;
(b) includes the citation; and
(c) bears to have been sent to the home or business email address of the juror being cited.
(4C) In subsection (4A) above, an “electronic citation” is a citation in electronic form which—
(a) is capable of being kept in legible form; and
(b) is signed by electronic signature by or on behalf of the sheriff clerk.”.
In section 257 (duty to seek agreement of evidence) of the 1995 Act, in subsection (4)—
(a) for the words “in the case of proceedings in the High Court” there is substituted “in relation to proceedings on indictment”,
(b) for the words “by that subsection are identified and taken before the preliminary hearing” there is substituted “are identified and taken—
(a) in the case of the High Court, before the preliminary hearing;
(b) in the case of the sheriff court, before the first diet”.
After section 34 of the 1995 Act there is inserted—
(1) Where the prosecutor believes—
(a) that, because of exceptional circumstances (and without an order under subsection (3) below), it is likely that there would be an unusually high number of accused persons appearing from custody for the first calling of cases on petition in the sheriff courts in the sheriffdom; and
(b) that it would not be practicable for those courts to deal with all the cases involved,
the prosecutor may apply to the sheriff principal for the order referred to in subsection (2) below.
(2) For the purposes of subsection (1) above, the order is for authority for petition proceedings against some or all of the accused persons to be—
(a) taken at a sheriff court in another sheriffdom; and
(b) maintained—
(i) there; or
(ii) at any of the sheriff courts referred to in subsection (1) above as may at the first calling of the case be appointed for further proceedings.
(3) On an application under subsection (1) above, the sheriff principal may make the order sought with the consent of the sheriff principal of the other sheriffdom.
(4) An order under subsection (3) above may be made by reference to a particular period or particular circumstances.
(5) This section does not confer jurisdiction for any subsequent proceedings on indictment.”.
After section 102 of the 1995 Act there is inserted—
(1) In proceedings on indictment, an accused person who without reasonable excuse fails to appear at a diet of which the accused has been given due notice (apart from a diet which the accused is not required to attend) is—
(a) guilty of an offence; and
(b) liable on conviction on indictment to a fine or to imprisonment for a period not exceeding 5 years or to both.
(2) In proceedings on indictment, where an accused person fails to appear at a diet of which the accused has been given due notice (apart from a diet which the accused is not required to attend), the court may grant a warrant to apprehend the accused.
(3) It is not, otherwise than under subsection (2) above, competent in any proceedings on indictment for a court to grant a warrant for the apprehension of an accused person for failure to appear at a diet.
(4) However, it remains competent for a court to grant a warrant on petition (as referred to in section 34 of this Act) in respect of an offence under—
(a) subsection (1) above;
(b) section 27(1)(a) of this Act,
whether or not a warrant has been granted under subsection (2) above in respect of the same failure to appear to which that offence relates.
(5) Where a warrant to apprehend an accused person is granted under subsection (2) above, the indictment falls as respects that accused.
(6) Subsection (5) above is subject to any order to different effect made by the court when granting the warrant.
(7) An order under subsection (6) above—
(a) for the purpose of proceeding with the trial in the absence of the accused under section 92(2A) (where the warrant is granted at a trial diet), may be made on the motion of the prosecutor;
(b) for any other purpose, may be made on the motion of the prosecutor or of the court’s own accord.
(8) A warrant granted under subsection (2) above shall be in such form as may be prescribed by Act of Adjournal or as nearly as may be in such form.
(9) A warrant granted under subsection (2) above (in the form mentioned in subsection (8) above) shall imply warrant to officers of law—
(a) to search for and apprehend the accused;
(b) to bring the accused before the court;
(c) in the meantime, to detain the accused in a police station, police cell or other convenient place; and
(d) so far as is necessary for the execution of the warrant, to break open shut and lockfast places.
(10) An accused apprehended under a warrant granted under subsection (2) above shall wherever practicable be brought before the court not later than in the course of the first day on which the court is sitting after the accused is taken into custody.
(11) Where the accused is brought before the court in pursuance of a warrant granted under subsection (2) above, the court shall make an order—
(a) detaining the accused until liberated in due course of law; or
(b) releasing the accused on bail.
(12) For the purposes of subsection (11) above, the court is to have regard to the terms of the indictment in relation to which the warrant was granted even if that indictment has fallen.
(13) In a case where a warrant is granted under subsection (2) above, any period of time during which the accused was detained in custody—
(a) as regards that case; and
(b) prior to the making of an order under subsection (11) above,
does not count towards any time limit applying in that case by virtue of section 65(4) of this Act.
(14) For the purposes of subsection (13) above—
(a) detention as regards a case includes, in addition to detention as regards the indictment in relation to which the warrant was granted (whether or not that indictment has fallen), detention as regards any preceding petition;
(b) it is immaterial whether or not further proceedings are on a fresh indictment.
(15) At any time before the trial of an accused person on indictment, it is competent—
(a) to amend the indictment so as to include an additional charge of an offence under subsection (1) above;
(b) to include, in the list of witnesses or productions associated with the indictment, witnesses or productions relating to that offence.
(16) In this section, “the court” means—
(a) where the accused failed to appear at the High Court—
(i) for the purposes of subsections (10) to (12) above, that Court (whether or not constituted by a single judge);
(ii) otherwise, a single judge of that Court;
(b) where the accused failed to appear at a sheriff court, any sheriff court with jurisdiction in relation to the proceedings.”.
After section 297 of the 1995 Act there is inserted—
(1) This section applies where a person has been apprehended under a warrant (the “original warrant”) granted under this Act in relation to any proceedings.
(2) If the person absconds, the person may be re-apprehended under the original warrant (and as if that warrant had not been executed to any extent).
(3) If, for any reason, it is not practicable to bring the person before the court as required under a provision of this Act applying in the case, the person is to be brought before the court as soon as practicable after the relevant reason ceases to prevail.
(4) Despite subsection (3) above, if—
(a) the original warrant was granted in solemn proceedings; and
(b) the impracticability arises because the person needs medical treatment or care,
the person may be released.
(5) A person released under subsection (4) above may be re-apprehended under the original warrant (and as if that warrant had not been executed to any extent).
(6) Subsection (3) above does not affect the operation of section 22(1B) of this Act (which relates to liberation on an undertaking of persons apprehended under warrant granted in summary proceedings).
(7) Nothing in this section prevents a court from granting a fresh warrant for the apprehension of the person.
(8) Subject to this section are—
(a) any rule of law as to bringing a person before a court in pursuance of a warrant granted on petition (as referred to in section 34 of this Act);
(b) section 102A(10) of this Act;
(c) section 135(3) (including as applying in relation to sections 22(1B) and 156) of this Act;
(d) section 90A(9) of this Act.”.
After section 267A of the 1995 Act there is inserted—
(1) The court may, on an application by the prosecutor in any proceedings, make an order requiring the accused person to participate in an identification parade or other identification procedure.
(2) The application may be made at any time after the proceedings have been commenced.
(3) The court—
(a) shall (if the accused is present) allow the accused to make representations in relation to the application;
(b) may, if it considers it appropriate to do so (where the accused is not present), fix a hearing for the purpose of allowing the accused to make such representations.
(4) Where an order is made under subsection (1) above, the clerk of court shall (if the accused is not present) have notice of the order effected as respects the accused without delay.
(5) Notice under subsection (4) above shall (in relation to any proceedings) be effected in the same manner as citation under section 141 of this Act.
(6) It is sufficient evidence that notice has been effected under subsection (5) above if there is produced a written execution—
(a) in the form prescribed by Act of Adjournal or as nearly as may be in such form; and
(b) signed by the person who effected notice.
(7) In relation to notice effected by means of registered post or the recorded delivery service, the relevant post office receipt requires to be produced along with the execution mentioned in subsection (6) above.
(8) A person who, having been given due notice of an order made under subsection (1) above, without reasonable excuse fails to comply with the order is—
(a) guilty of an offence; and
(b) liable on summary conviction to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 12 months or to both.
(9) For the purpose of subsection (5) above, section 141 of this Act is to be read with such modifications as are necessary for its application in the circumstances.
(10) In this section, “the court” means—
(a) in the case of proceedings in the High Court, a single judge of that Court;
(b) in any other case, any court with jurisdiction in relation to the proceedings.”.
(1) In section 66 (service and lodging of indictment, etc.) of the 1995 Act—
(a) in subsection (6A)—
(i) in paragraph (a)(i), after the word “defence” there is inserted “(including at any commissioner proceedings)”,
(ii) in paragraph (a)(iii), after the word “trial” there is inserted “(or at any related commissioner proceedings)”,
(b) after subsection (14) there is added—
“(15) In subsection (6A) above, “commissioner proceedings” means proceedings before a commissioner appointed under section 271I(1) or by virtue of section 272(1)(b) of this Act.”.
(2) In section 140 (citation) of that Act—
(a) in subsection (2A)—
(i) in paragraph (a), after the word “defence” there is inserted “(including at any commissioner proceedings)”,
(ii) in paragraph (c), after the word “trial” there is inserted “(or at any related commissioner proceedings)”,
(b) after subsection (2B) there is added—
“(2C) In subsection (2A) above, “commissioner proceedings” means proceedings before a commissioner appointed under section 271I(1) or by virtue of section 272(1)(b) of this Act.”.
(3) In section 271I (taking of evidence by a commissioner) of that Act—
(a) after subsection (1) there is inserted—
“(1A) Proceedings before a commissioner appointed under subsection (1) above shall, if the court so directed when authorising such proceedings, take place by means of a live television link between the place where the commissioner is taking, and the place from which the witness is giving, evidence.”,
(b) in subsection (3)(a), for the words “present in the room where such proceedings are taking place” there is substituted “present—
(i) in the room where such proceedings are taking place; or
(ii) if such proceedings are taking place by means of a live television link, in the same room as the witness”,
(c) after subsection (4) there is added—
“(5) Sections—
(a) 274;
(b) 275;
(c) 275B except subsection (2)(b);
(d) 275C;
(e) 288C;
(f) 288E; and
(g) 288F,
of this Act apply in relation to proceedings before a commissioner appointed under subsection (1) above as they apply in relation to a trial.
(6) In the application of those sections in relation to such proceedings—
(a) the commissioner acting in the proceedings is to perform the functions of the court as provided for in those sections;
(b) references—
(i) in those sections, except section 275(3)(c) and (7)(c), to a trial or a trial diet;
(ii) in those sections, except sections 275(3)(e) and 288F(2), (3) and (4), to the court,
shall be read accordingly;
(c) the reference in section 275B(1) to 14 days shall be read as a reference to 7 days.
(7) In a case where it falls to the court to appoint a commissioner under subsection (1) above, the commissioner shall be a person described in subsection (8) below.
(8) The persons are—
(a) where the proceedings before the commissioner are for the purposes of a trial in the High Court, a judge of the High Court; or
(b) in any other case, a sheriff.”.
(4) In section 272 (evidence by letter of request or on commission) of that Act, after subsection (9) there is added—
“(10) Sections—
(a) 274;
(b) 275;
(c) 275B except subsection (2)(b);
(d) 275C; and
(e) 288C,
of this Act apply in relation to proceedings in which a commissioner examines a witness under subsection (1)(b) above as they apply in relation to a trial.
(11) In the application of those sections in relation to such proceedings—
(a) the commissioner acting in the proceedings is to perform the functions of the court as provided for in those sections;
(b) references—
(i) in those sections, except section 275(3)(c) and (7)(c), to a trial or a trial diet;
(ii) in those sections, except section 275(3)(e), to the court,
shall be read accordingly;
(c) the reference in section 275B(1) to 14 days shall be read as a reference to 7 days.
(12) In a case where it falls to the court to appoint a commissioner for the purposes of subsection (1)(b) above, the commissioner shall be a person described in subsection (13) below.
(13) The persons are—
(a) where the proceedings before the commissioner are for the purposes of a trial in the High Court, a judge of the High Court; or
(b) in any other case, a sheriff.”.
(5) In section 275A(1) (disclosure of accused’s previous convictions where court allows questioning or evidence under section 275) of that Act, after the word “court” there is inserted “(or, in proceedings before a commissioner appointed under section 271I(1) or by virtue of section 272(1)(b) of this Act, a commissioner)”.
(6) In section 288D (appointment of solicitor by court in such cases) of that Act—
(a) in subsection (2), after paragraph (a)(ii) there is inserted—
“(iii) the conduct of his case at any commissioner proceedings; or”,
(b) in subsection (6), after the word “trial” there is inserted “(or at any related commissioner proceedings)”,
(c) after that subsection there is inserted—
“(6A) Where, in relation to commissioner proceedings, the commissioner is satisfied that a solicitor so appointed is no longer able to act upon the instructions, or in the best interests, of the accused, the commissioner is (for the purpose of the application of subsection (6) above) to refer the case to the court.”,
(d) in subsection (7), for the word “(6)” in the first place where it occurs there is substituted “(6A)”,
(e) after subsection (8) there is added—
“(9) In this section, “commissioner proceedings” means proceedings before a commissioner appointed under section 271I(1) or by virtue of section 272(1)(b) of this Act.”.
In section 16 (victim’s right to receive information concerning release etc. of offender) of the Criminal Justice (Scotland) Act 2003 (asp 7)—
(a) in subsection (5)(b)(ii), after the word “sub-paragraph” in the second place where it occurs there is inserted “and as if in paragraph (a)(ii) of the said section 14(6) (as it applies by virtue of that sub-paragraph) the words “, immediately before the offence (or apparent offence) was perpetrated, cared” were “cares””,
(b) after subsection (6) there is added—
“(7) Where, but for section 14(8) (as it applies in relation to subsection (5)(a)), information would—
(a) under subsection (1) (as read with subsection (5)(a)); and
(b) by virtue of section 14(10)(c) to (e) and (g) to (i) (as it applies in relation to subsection (5)(a)),
fall to be given to a child who has not attained the age of fourteen years, that information is to be given instead to a person who cares for the child.
(8) In subsection (7), the reference to a person who cares for the child is to be construed in accordance with section 2(28) of the Regulation of Care (Scotland) Act 2001 (asp 8).”.
After section 301 of the 1995 Act there is inserted—
(1) It is competent for the sheriff court to make, in connection with any criminal proceedings mentioned in subsection (2) below, the orders mentioned in subsection (3) below.
(2) The proceedings are—
(a) solemn proceedings in that sheriff court;
(b) summary proceedings—
(i) in that sheriff court;
(ii) in any JP court in that sheriff court’s district.
Criminal Proceedings etc (Reform) (Scotland) Act 2007