Office of Public Sector Information
211.Subsection (3)(c) adds further provision to section 271I, and applies sections 274, 275, 275B (except subsection (2)(b)), 275C, 288C, 288E and 288F of the 1995 Act. Sections 274 and 275 contain certain prohibitions on the leading of evidence, and on questioning, which relates to the sexual history of the complainer in cases of certain sexual offences. In addition, section 275B provides the timescales under which an application regarding leading evidence must be made. Section 275C relates to expert evidence as to subsequent behaviour of the complainer in certain cases. Section 288C, 288E and 288F prohibit the accused from conducting his or her own defence in certain cases. Subsection (3)(c) provides that the protections available to witnesses in court proceedings as set out in the named sections apply equally in commissioner proceedings when used as a special measure in respect of vulnerable witnesses. This subsection also provides that the commissioner shall be a judge or a sheriff. This is so that s/he has the power to rule on questions of admissibility of evidence and whether certain questions may be asked of the witness.
212.Subsection (4) amends section 272 of the 1995 Act in relation to the taking of evidence on commission generally. It provides that the protections set out in sections 274, 275, 275B (except subsection (2)(b)), 275C, and 288C of the 1995 Act apply to commissioner proceedings as they do to trial proceedings. As above, it also provides that the commissioner shall be a judge or a sheriff.
213.Section 275A(1) of the 1995 Act places a duty on the prosecutor to disclose any relevant previous convictions of the accused to the presiding judge where the court allows questioning or evidence which would normally be prohibited in terms of section 274 of the Act. Subsection (5) amends section 275A(1) of the 1995 Act and provides that where a commissioner has allowed evidence or questioning normally prohibited in terms of section 274 the prosecutor is still under a duty to lay any relevant previous convictions before the presiding judge during the course of the actual trial.
214.Subsection (6) amends section 288D of the 1995 Act and provides that the power of the court to appoint a solicitor where an accused is prohibited from conducting his own defence and has failed to appoint a solicitor is extended to ensure that the power to appoint a solicitor to act at proceedings before a commissioner remains with the court.
215.Section 36 amends section 16 of the Criminal Justice (Scotland) Act 2003 to confer upon the current carers of children under the age of 14 in cases where the victim of a crime has died, the right, on the child’s behalf to;
receive from Scottish Ministers certain information regarding the victim’s assailant’s release into the community
receive certain information regarding Parole Board review hearings and licence conditions from the Parole Board.
make representations to the Parole Board prior to a decision being taken on the release (and the licence conditions) of the offender and, in certain circumstances where decisions upon licence conditions are taken by the Scottish Ministers to make representations to the Scottish Ministers prior to a decision being taken by them on licence conditions and to receive certain information concerning licence conditions from the Scottish Ministers
These rights remain with the current carers until the child attains the age of 14 years when the rights transfer to the child in his or her own right.
216.This section introduces power to the sheriff court to grant orders for commission and diligence for the recovery of documents or for the production of documents. New section 301A is inserted into the 1995 Act. Orders for commission and diligence are more regularly used in civil proceedings; however, they are not unknown in the criminal context. Commission and diligence is a means of recovering documents which are required in respect of a litigation and are held in the hands of third parties. Currently the power to grant commission and diligence for the recovery of documents in criminal cases is only enjoyed by the High Court of Justiciary (H.M. Advocate v. Ashrif 1988 S.L.T. 567 refers). As a result a separate application has to be made to the High Court of Justiciary if commission and diligence is required during the course of a case in the sheriff or district court.
217.Although in practice little distinction may be made between the two orders, an order for the production of documents appears to be the most appropriate remedy when documents are sought by the accused and they are in the hands of the Crown (McLeod v. H.M. Advocate (No. 2) 1998 S.L.T. 233; Maan v. H.M. Advocate 2001 S.L.T. 408). The position in relation to a sheriff’s power to grant an order for the production of documents is less clear than for commission and diligence. The provisions of section 37 of the Act resolve any uncertainty in that regard.
218.Subsections (1), (2) and (3) confer a power on the sheriff court to grant orders for commission and diligence for the recovery of documents and orders for the production of documents. Sheriff courts are given this power in relation to: solemn proceedings in that sheriff court; and summary proceedings both in that court and in any JP court in that sheriff court’s district.
219.Under subsection (4) applications for such orders cannot be made, in relation to solemn proceedings, until the indictment has been served on the accused, or s/he has been cited to answer an indictment; or in relation to summary proceedings until the accused has answered the complaint.
220.Subsection (5) provides that the grant or refusal to grant the application can be appealed to the High Court.
221.The available case law on the subject deals only with cases where the accused has sought to recover documents. There are other methods open to the prosecutor or police for the recovery of information during the investigation of alleged offences. To that end it is envisaged that it will invariably be the accused who applies to the court for these orders. Subsection (7) enables the prosecutor to be heard at any application for an order under subsection (1) or at an appeal under subsection (5) whether or not the prosecutor is a party to the application or appeal. Therefore, where the accused seeks documents from another individual or organisation the prosecutor will have a right to make representations in relation to whether or not that order should be granted. By virtue of the fact that a third-party haver (i.e. the holder of the documents which are sought) will be a party to the application it would be competent for that haver to raise any objection to the granting of the application.
222.Subsection (8) provides that the powers of the High Court to grant the orders mentioned in subsection (3) are restricted to orders in connection with proceedings in the High Court. This is analogous to the position in civil proceedings where sheriffs deal with applications for commission and diligence relating to cases which are before that court and Court of Session judges deal with applications for commission and diligence in cases before that court.
223.Section 38 inserts a new section 298A into the 1995 Act and provides that bills of suspension and advocation (forms of criminal appeal) and petitions to the nobile officium (a form of appeal to the High Court where no other remedy is available to the appellant) may be intimated by serving a copy of it by a variety of means rather than having to serve personally the original document on the other party. Service may be made in the same manner as citation under section 141 of the 1995 Act (which sets out the ways in which the accused and witnesses may be cited to appear in court in summary proceedings). Currently service of bills and petitions is largely regulated by common law.
224.Section 39 inserts a new section 75B into the 1995 Act (in relation to solemn proceedings) and a new section 137ZA (in relation to summary proceedings). These sections provide that the court may independently refix any diet which has been fixed for a non-sitting day without the need to hear from the prosecutor or the accused on the matter. Where the diet relates to a trial diet either party to the case is entitled to an adjournment of the new diet fixed if they can satisfy the court that it is not practicable for that party to proceed with the case on the new date.
225.This section inserts section 300A into the 1995 Act and creates a new power for the court to relieve any party to a criminal case from failure to comply with certain procedural requirements. This power applies to summary and solemn cases. The power can be exercised whether the requirements are set out in statute (such as the 1995 Act) or whether they form part of the common law. An example of where this provision may be used would be where an accused appears on a number of complaints at different times and, in order that the complaints may be dealt with at the same time, the complaints are continued to the same date. On that date the complaints are dealt with, with the exception of one which was inadvertently missed from the court list. This was not discovered until the next day. As the complaint did not call on the date it was continued, the proceedings were deemed to have fallen at midnight on the date of the continuation. This provision would allow the prosecutor to apply to the court to seek an excusal of that irregularity and have the case called.
226.Subsection (1) sets out the circumstances in which the court can excuse a procedural irregularity. The irregularity must fall within the kinds described in subsection (5), and must also relate to the current criminal proceedings before the court. The court can exercise its power only where the conditions set out in subsection (4) apply.
227.Subsection (2) provides that the High Court, in appeal proceedings, can also excuse a procedural irregularity which occurred in the original proceedings which are the subject of the appeal. Subsection (3) provides that the application may be at the instance of the prosecutor or the accused and that the other party is to be given the opportunity to be heard.
228.Subsection (4) lists certain conditions of which the court must be satisfied before excusing a procedural irregularity under subsection (1). A procedural irregularity must have arisen from a mistake or an oversight, or another excusable reason, and the court must be satisfied in the circumstances of the case that its excusal would be in the interests of justice.
229.Subsection (5) describes the procedural failures that are covered by the court’s power to excuse. Paragraphs (a) to (d) of subsection (5) list specific types of irregularity. The list is not intended to be exhaustive – paragraph (e) states that any other procedural requirement not complied with by the court, the prosecutor or the accused may be excused by the court, subject to the exclusions set out in subsections (6) and (7).
230.Subsection (6) expressly excludes irregularities arising from a period of detention of an accused person in custody which exceeds the relevant time limits contained in the 1995 Act. Therefore, for example, a failure on the part of the Crown to commence proceedings within the 40 day time limit in section 147 where the accused is being held in custody could not be excused under new section 300A. However, the general power in section 300A is without prejudice to any statutory provision that allows the court to extend a time limit (subsection (11)). Accordingly, in the above example, section 147(2) would continue to apply and an application could therefore be made under that provision for an extension of the time limit.
231.Subsection (7) expressly excludes irregularities relating to the admissibility or sufficiency of evidence, or any other evidential factor. For example the fact that evidence had been ruled as inadmissible because it was irrelevant could not be excused. Nor could a lack of corroboration (in terms of sufficiency of evidence) be excused.
232.Subsection (8) sets out the powers available to the court where it decides to excuse a procedural irregularity under subsection (1). Following an excusal, the court can make an order, as is necessary or expedient, for the purpose of restoring or facilitating the continuation of the proceedings as if the irregularity had never occurred, or protecting the rights of the parties to the case.
233.Subsections (11) & (12) make it clear that section 300A is to operate without prejudice to other parts of the 1995 Act which empower the court to cure defects in proceedings by, for example, allowing the court to alter a diet, extend a particular time period or limit, or any rule of law which allows departure from directory requirements to be excused.
234.This section makes provision to allow for procedures such as initiation of proceedings and signing requirements in the summary courts to be carried out electronically. New sections 303B and 308A are inserted into the 1995 Act.
235.Section 138 of the 1995 Act provides that all summary proceedings must be instituted by a complaint which is signed by the procurator fiscal. The form and content of such a complaint is detailed in schedules 3 and 5 to the 1995 Act and rule 16.1 of the Act of Adjournal (Criminal Procedure Rules) 1996. Subsection (1) of new section 303B provides that proceedings may be initiated by electronic complaint and where this is the case the requirement for a signature by the procurator fiscal is satisfied by an electronic signature. Subsection (1)(c) specifies that an electronic signature will also be valid on other complaints as well as electronic complaints. So, for instance, a printed copy of a complaint which has been signed electronically can be regarded as having been validly signed. Electronic signature attracts the definition which is given to it in section 7(2) of the Electronic Communications Act 2000 (c.7).
236.Subsection (2) of the new section provides that any reference in the Act to a complaint includes a reference to an electronic complaint unless otherwise required.
237.Subsection (3) of the new section provides that where proceedings were initiated by electronic complaint that complaint shall be held to be the principal version of the complaint in the event of any conflict between that complaint and any other document.
238.Subsection (4) of new section 303B provides that a juror’s citation may be satisfied by an electronic signature of or on behalf of the sheriff clerk as required by .section 85(4) of the 1995 Act.
239.Subsection (5) of the new section provides that a certificate produced by the prosecutor stating the period of time to be disregarded in calculating the date of commencement of proceedings (for the purposes of calculating time-bar in a case) where an offer from the prosecutor of a fixed penalty, compensation offer or work order has not been accepted or is recalled may be authenticated by an electronic signature. This relates to the provision in section 136B of the 1995 Act, which is introduced by section 54 of this Act – the certificate is referred to in the new section 136B(2).
240.Subsection (6) of the new section provides that the signing of postal citations of accused persons may be satisfied by electronic signature. Currently under section 141(3)(a) of the 1995 act these citations must be physically signed by the prosecutor.
241.Subsection (7) of the new section provides that where amendments are made to an electronic complaint authentication by the clerk of court by means of an electronic signature shall be sufficient.
242.Subsection (8) of the new section refers to section 172(2) of the 1995 Act which relates to the signing of warrants (other than warrants of apprehension or search), orders of court and sentences. New subsection (8) provides that the requirement to sign such items may be satisfied by means of an electronic signature of the clerk of court.
243.Subsection (9) of the new section provides that an electronic signature shall be sufficient authentication on a statement of uncontroversial evidence.
244.Subsection (10) of the new section provides that an electronic signature will be sufficient authentication where corrections of errors have been made in summary proceedings.
245.Section 41(2) of the Act inserts a new section 308A into the 1995 Act. This section provides definitions of the terms used in relation to electronic proceedings.
246.Subsections (1) & (2) give definitions of electronic complaint, electronic communication and electronic signature. Subsections (3) & (4) provide that Scottish ministers may by order modify the meaning of electronic signature.
247.Subsections (1) (2) and (3) of section 42 provide that the Scottish Ministers may, by order, make provision for the purpose of or in connection with using electronic complaints, keeping the record of proceedings in electronic form, allowing validity and formality requirements to be satisfied by electronic means and using electronic communication. Such an order may relate to the availability and authentication of documents and records to specified persons or classes of persons, the authentication of documents and records and the use of electronic signatures in documents and records.
248.Subsection (4) provides that the terms ‘electronic complaint and ‘electronic communication’ are to be given the definition contained in new section 308A of the 1995 Act (inserted by section 41(2) of the Act).
249.This section amends section 5(2)(d) of the 1995 Act by increasing the maximum sentence of imprisonment which can be imposed by a sheriff for a common law offence in a summary case from 3 months to 12 months. At present, section 5(3) of the 1995 Act provides that the maximum sentence of imprisonment for a second or subsequent offence involving violence or dishonesty is 6 months. This provision is repealed meaning that, in future, all common law offences will be punishable with a maximum custodial sentence of 12 months on summary conviction. The sentencing powers of the district court are unaffected.
250.This section increases the maximum prison sentence for certain statutory offences. These offences attract a maximum sentence in excess of the present common law maximum, but below the proposed new common law maximum of 12 months. They are triable summarily only, so the penalties would not be altered by the provisions of section 45 of this Act. Subsection (1) increases the maximum prison sentence for offences under section 41 of the Police (Scotland) Act 1967 from 9 to 12 months, and amends that Act accordingly. That section covers assaulting or otherwise impeding police officers in the course of their duty.
251.Subsection (2) extends existing powers to impose maximum custodial sentences of 6 months on summary conviction for offences related to the transposition of Council Directive 92/43/EC on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”). Section 26A of the Wildlife and Countryside Act 1981 (“the 1981 Act”) currently provides that regulations made under section 2(2) of the European Communities Act, which give effect to the Habitats Directive, may provide for a maximum prison sentence on summary conviction of 6 months. Such regulations would otherwise only be able to impose a maximum sentence of 3 months.
252.However, the power under section 26A of the 1981 Act refers only to the Directive as it was then amended by the Act of Accession to the European Union of Austria, Finland and Sweden and by Council Directive 97/62. That reference to the Directive does not take account of a subsequent amendment to the Habitats Directive (by the Act of Accession of the Czech Republic etc in 2003). The effect of this is that section 26A of the 1981 Act does not enable the imposition of maximum 6 month custodial sentences in relation to offences related to that later amendment of the Habitats Directive. Subsection (2) ensures that the 6 month maximum can apply in respect of all offences related to the Habitats Directive and that, in the event of any future amendment of the Directive, section 26A of the 1981 Act will continue to apply to the Directive as amended.
253.Subsection (3) increases the maximum sentence under section 37 of the Antisocial Behaviour (Scotland) Act 2004 to 12 months or a fine not exceeding the prescribed sum or both and abolishes the distinction in the maximum penalty between a first offence and a second or subsequent offence. Section 37 contains offences relating to premises which are subject to a closure order.
254.Subsection (4) increases the maximum sentence under the Emergency Workers (Scotland) Act 2005, section 6, from 9 to 12 months or a fine not exceeding the prescribed sum or both. That section covers the offences created by that Act of assaulting or impeding emergency or health workers in the course of their duty.
255.Subsection (5) increases the maximum prison sentence under section 39 of the Fire (Scotland) Act 2005 from 9 to 12 months or a fine not exceeding level 4 on the standard scale or both. That section covers assaulting or impeding those performing certain functions under that Act.
256.This section brings the maximum summary prison sentences for certain statutory offences into line with the new maximum sentence for common law offences set out in section 43 of the Act.
257.Subsection (1), read with subsections (6), (7) and (8) set out the new maximum, and define the penalty provisions that will be altered. Offences which will be affected are those which can be tried under either solemn or summary procedure (sometimes referred to as “triable either way”) and attract maximum prison sentences of less than 12 months on summary conviction. The new maximum summary penalty for such offences will be 12 months.
258.The effect of subsection (2) is that the statutes which create the affected offences are to be read subject to the amended summary sentencing limit.
259.Subsection (3) allows the Scottish Ministers to amend the maximum period of imprisonment specified in the statutory offences to which subsections (1) and (2) apply. This means that, in due course, textual amendment of the relevant statutes can take place, avoiding ongoing reliance on the general amendment. Subsection (4) provides that the maximum period of imprisonment provided for in a relevant power is to be read as a period of 12 months. Subsection (5) allows the Scottish Ministers to amend certain provisions in enactments that contain powers to create offences. Where an enactment provides for the creation of offences punishable on both solemn and summary conviction, the maximum summary penalty may, by order, be increased to 12 months.
260.This section gives powers to the Scottish Ministers to amend the maximum penalties available to the JP court. Ministers will be able to make similar changes which would apply to any remaining district courts by virtue of section 64(5) of the Act.
261.Subsection (1) empowers Ministers to amend, by order, the maximum period of imprisonment, fine, or amount of caution available to JP courts for either common law offences or statutory offences, as specified in section 7(6) or (7) of the 1995 Act.
262.Subsection (2) empowers Ministers to amend the maximum penalty available to JP courts in respect of an offence set out in another statute.
263.Subsection (3) caps these powers. The effect of subsection (3) is that an order could empower the JP court to impose imprisonment for up to 6 months (but could also increase the limit to a period that is higher than the current maximum of 60 days but lower than 6 months).
264.This section provides that the maximum level of fine that may be imposed on summary conviction in respect of a statutory “triable either way offence” where the maximum penalty on summary conviction is currently expressed by reference to ‘level 5 on the standard scale’ is to be £10,000 in future.
265.Subsection (1) (read with the definitions provided in subsections (6), (7) and (8)), provides that the maximum fine that may be imposed on a person following summary conviction of a “triable either way” offence for which the current maximum is referred to as level 5 on the standard scale shall be the statutory maximum.
266.The effect of subsection (2) is that the statutes which create the affected offences are to be read subject to the amended maximum financial penalty (the reference to “level 5” as the maximum fine imposable on summary conviction in a “triable either way” offence is to be read as a reference to “the statutory maximum” by virtue of this provision).
267.Subsection (3) allows the Scottish Ministers, by order, to amend the maximum level of fine specified in the statutory offences to which subsections (1) and (2) apply. This means that, in due course, textual amendment of the relevant statutes can take place, avoiding ongoing reliance on the general amendment.
268.The effect of subsection (4) is that any reference in a ‘relevant power’ which expresses the maximum level of fine that may be imposed on summary conviction for a “triable either way” offence as level 5 on the standard scale is to be read as a reference to the statutory maximum. ‘Relevant power’ is defined in subsection (7).
269.Subsection (5) allows the Scottish Ministers, by order, to amend the specification of the maximum fine level in a relevant power so as to increase the maximum to the statutory maximum. This means that, in due course, textual amendment of relevant powers can take place, ensuring that those powers make clear the level of penalty that may be set in any offence created under them, avoiding ongoing reliance on the general amendment.
270.Subsections (6) to (8) provide definitions for the purposes of subsections (1) to (5).
271.This section increases the prescribed sum from £5,000 to £10,000. The prescribed sum is the maximum amount the sheriff may impose for a common law offence and certain statutory offences under summary procedure.
272.This section amends section 249 of the 1995 Act. That section prescribes and limits the circumstances in which a court can impose a compensation order on an offender. The purpose of the amendment is to extend the power of the court to impose compensation orders.
273.This section is also relevant to the operation of the new alternative to prosecution introduced in section 50 of this Act – the compensation offer – as prosecutors are empowered to issue compensation offers in circumstances where a court could, on conviction, impose a compensation order.
274.The introduction of section 249(1)(b) of the 1995 Act permits compensation to be ordered by a court, or offered by a prosecutor, in circumstances where alarm or distress have been caused directly by the actions complained of. Currently, section 249(1) limits compensation orders to circumstances where personal injury, loss or damage is caused either directly or indirectly.
275.This section provides considerable changes in procedures relating to existing alternatives to prosecution, and introduces a new alternative to prosecution, to be known as the compensation offer. It makes significant amendments to sections 302 and 303 of the 1995 Act, and introduces a number of new sections to that Act. Sections 302 and 303 deal with conditional offers of a fixed penalty by prosecutors (generally known as “fiscal fines”).
276.Subsection (1)(a) amends section 302(2) of the 1995 Act, which covers the information which requires to be provided to the alleged offender in a conditional offer. The amendments take account of the revised procedure introduced by this Act. It is also made clear that an offer letter can stipulate that the whole penalty is to be paid in a single instalment.
277.Subsection (1)(c) inserts subsections (4A) - (4C) into section 302 of the 1995 Act. This effects a change to the way in which fixed penalties are administered. Acceptance of a conditional offer of a fixed penalty will now be either by making any payment in respect of the offer, or by taking no action in respect of the offer. Currently, an offer of a fixed penalty requires the suspected offender to take positive steps to accept it. The terms of these new subsections render subsections (5) and (6) of section 302 redundant, and these are repealed by subsection (1)(d) of this section.
278.Subsection (1)(b) makes a consequential amendment to section 302(4) of the 1995 Act, to oblige the clerk of court to notify the procurator fiscal whether or not the conditional offer has been rejected.
279.Subsections (1)(e), (f) and (g) amend the maximum level of a conditional offer from level 1 on the standard scale (presently £200) to £300. The Scottish Ministers are given power to further increase the maximum by order, subject to affirmative procedure.
280.Subsection (1)(h) inserts new subsections (8A) and (8B) into section 302 of the 1995 Act. Subsection (8A) raises a rebuttable presumption that the alleged offender has received a conditional offer if it is sent to: the address given by the alleged offender in relation to a recall application under section 302C(1) (see paragraphs 291 to 296 below); or to any address which the alleged offender has given to the clerk of court or the procurator fiscal in respect of that offer. Subsection (8B), in turn, raises a presumption in relation to the operation of section 141(4) of the 1995 Act, which covers the citation of accused persons to court. It provides that citation of the accused will be presumed to have been successfully effected if sent to the same address at which it can be proved the accused received a conditional offer, or at another address given by the accused in connection with that offer.
281.Subsection (1)(i) amends section 302(9) of the 1995 Act. It extends the range of offences for which conditional offers can be made. At present a conditional offer can be made in respect of any offence which can be tried in the district court. Subject to the exclusion of certain road traffic offences set out in section 302(9) of the 1995 Act, it will now be competent to make a conditional offer in relation to any offence which can be tried summarily.
282.Section 50(2) introduces three new sections into the 1995 Act (sections 302A to 302C). The first of these sections, 302A, creates compensation offers by the procurator fiscal and provides a mechanism for their operation. Many of the procedures are identical to, or similar to, those made for the operation of the new system which will apply to conditional offers of a fixed penalty.
283.A procurator fiscal is permitted by section 302A(1) to send a compensation offer to an alleged offender where it seems that a relevant offence has been committed. A relevant offence is defined in section 302A(13) as an offence which can be tried summarily, and for which a court could competently make a compensation order (section 49 and paragraphs 272 to 274 above refer). The offer document is required by section 302A(2) to give the accused similar information to that given in a conditional offer of a “fiscal fine”. This includes provision that the prosecutor can stipulate that payment of the whole amount is to be made in one instalment.
284.Section 302A(3) provides that a compensation offer can be made in respect of more than one relevant offence. Section 302A(4) obliges the clerk of court to advise the procurator fiscal whether notice has been given that the offer has been rejected. Sections 302A(5) and (6) provide that acceptance of an offer is deemed either if payment is made to the offer, or if the alleged offender takes no action to expressly reject it.
285.Section 302A(7) provides that if a compensation offer is accepted no prosecution can take place, and no conviction will be recorded.
286.Section 302A(8) and (9) provide that the maximum amount of a compensation offer is to be set by the Scottish Ministers, but that it is not to exceed level 5 on the standard scale (presently £5000).
287.Sections 302A(10) and 302A(11) make provision for presumption of service of further compensation offers and in respect of citations served in terms of section 141(4) of the 1995 Act. These are the same as those described at paragraph 280 above.
288.Section 302B makes provision to allow prosecutors to make a conditional offer combining elements of both a fine and compensation. Any such offer will be regarded as a “combined offer”.
289.Section 302B(3) sets out the additional information which requires to be provided in a combined offer, which in terms of section 302B(2) requires to be in a single notice.
290.Section 302B(4) provides that acceptance of part of any such offer will be regarded as applying to the whole offer. This guards against the possibility that, faced with two separate offers of a fine and compensation for the same incident, the alleged offender will accept one and reject the other.
291.Section 302C provides a mechanism for recalling a “fiscal fine” offer or compensation offer. Section 302C(1) provides that the alleged offender can make a request for recall where s/he has taken no action in respect of the offer and it is deemed to have been accepted.
292.Section 302C(2) provides that recall of deemed acceptance can be sought where the alleged offender claims that s/he did not receive the offer; or where the offer was received but the alleged offender claims that it was not practicable because of exceptional circumstances for notice of refusal of the offer to be given. In both cases the alleged offender must also claim that the offer would have been refused.
293.Section 302C(3) provides that where the alleged offender wishes to apply to have the deemed acceptance recalled, s/he must apply to the clerk of court within certain time limits. However, section 302C(4) permits the clerk to consider a request for recall outwith those time limits on cause shown. In terms of section 302C(5), on receipt of an application for recall the clerk of court may either uphold or recall the offer.
294.Section 302C(6) gives the alleged offender the right to apply to the court which is specified in the offer for review of the clerk of court’s decision, and section 302C(7) gives the court power, in turn, to confirm or quash the clerk’s decision. Section 302C(8) provides that the court’s decision is final.
295.The clerk of court is obliged by section 302C(9) to inform the procurator fiscal of a request for recall, an application for review of the clerk’s decision, and any decision taken either by the clerk or the court in connection with the application.
296.Section 302C(10) provides that for the purposes of considering an application for recall the procurator fiscal can certify when the offer was sent.
297.Section 50(3) makes further provision in relation to enforcement of alternatives to prosecution, and amends section 303 of the 1995 Act accordingly.
298.Subsection (3)(a) provides that, where an alternative to prosecution has been accepted, any outstanding amount is to be treated for enforcement purposes as if it were a fine imposed by the court.
299.Subsection (3)(b) provides that no action is to be taken to enforce a “fiscal fine” or compensation offer where acceptance has been deemed by the alleged offender’s lack of action, unless a notice is sent to the alleged offender explaining that enforcement action is to be taken, and outlining the recall procedure. Action can only be taken once any application for recall has been dealt with.
300.This section inserts a new section 303ZA into the 1995 Act. It creates a new alternative to prosecution – the “work order” (which has also been referred to as the “fine on time” or “community fiscal fine”).
301.Section 303ZA(1) empowers a procurator fiscal to make a ‘work offer’ to an alleged offender who appears to have committed a relevant offence (defined in section 303ZA(16) as one which is triable summarily). This offer will give the alleged offender the option of performing a period of unpaid work where a monetary penalty such as a “fiscal fine” or a compensation offer are not deemed appropriate.
302.Section 303ZA(2) sets the minimum (10 hours) and maximum (50 hours) number of hours work that can be offered under a work offer. Section 303ZA(3) outlines the information which will require to be contained on the notice of offer. In many ways this is similar to the information which requires to be on the notice of offer of the two other alternatives to prosecution which are described above. The circumstances of the alleged offence, the amount of work which will require to be completed, the date by which the work will require to be completed, and the consequences of acceptance and completion of the offer all require to be in the offer.
303.Section 303ZA(4) permits the work offer to be made in respect of more than one offence, and subsection (5) provides details on what the alleged offender requires to do to accept the offer. Unlike the new system for “fiscal fines” and compensation offers, the work offer requires to be positively accepted by the alleged offender.
304.Section 303ZA(6) provides that if the offer is accepted, the procurator fiscal can then make a work order against the alleged offender. On doing so, the procurator fiscal must send a notice to the alleged offender that a work order has been made, containing details of the amount of work to be carried out and details of the person who is to supervise performance of the order (section 303ZA(7)). Section 303ZA(8) obliges the procurator fiscal to advise the supervising local authority of the imposition of an order.
305.Section 303ZA(9), (10) and (11) deal with the manner in which the supervising officer’s duties are to be discharged. The officer is to determine the nature, time and place of the work to be done, and give directions to the alleged offender regarding its performance. The officer is also to provide the procurator fiscal with details of the performance of the order. The purpose of this last provision is to allow the procurator fiscal to consider whether, in the event that the order is not completed satisfactorily, further action is appropriate. The officer is under a duty, as far as practicable, not to direct the alleged offender to carry out work which would hamper the alleged offender’s attendance at work or education, or which would conflict with the alleged offender’s religious beliefs.
306.Section 303ZA(12) provides that where the alleged offender completes the work required in the order s/he will not face prosecution for the alleged offence. In the event that the entire order is not completed satisfactorily, the procurator fiscal will have the option of prosecuting the alleged offender for the alleged offence giving rise to the work order, even if some work has been carried out under the order.
307.Section 303ZA(13) and (14) give the Scottish Ministers a regulation-making power to make specific provision in relation to specific aspects of work orders as set out in subsection (9). In particular the Scottish Ministers may specify what kind of work may or may not be undertaken.
308.Section 303ZA(15) makes provision for citation of the alleged offender in subsequent prosecution. The position is similar to that for “fiscal fines” and compensation offers. Citation will be presumed to have taken place if it is effected at the address at which the alleged offender is proved to have received an offer, or any other address provided by the alleged offender.
309.This section inserts section 303ZB into the 1995 Act. It formalises the power of the procurator fiscal to set aside an offer of an alternative to prosecution of the types listed in section 303ZB(1).
310.Section 303ZB(2) provides that the procurator fiscal can set aside an offer of such an alternative to prosecution where s/he is satisfied that the offer should have not been made, on the basis of information which comes to his/her attention after the making of the offer.
Criminal Proceedings etc (Reform) (Scotland) Act 2007