Office of Public Sector Information
311.Section 303ZB(3) confirms that this power applies even if the offer has been accepted or deemed to have been accepted.
312.Section 303ZB(4) obliges the procurator fiscal when exercising this power to advise the alleged offender that the offer has been set aside and that any liability to conviction for the alleged offence is discharged.
313.This section amends section 69 (notice of previous convictions), section 101 (previous convictions: solemn proceedings), and section 166 (previous convictions: summary proceedings) of the 1995 Act, and makes provisions governing the circumstances in which an offer of an alternative to prosecution can be disclosed to the court. To all intents and purposes the amendments to each section have an identical effect.
314.The primary purpose of these amendments is to allow the prosecutor to include in any notice of previous convictions, whether in a solemn or summary case, details of an alternative to prosecution which has been accepted (completed in the case of a work order) by the alleged offender in the two years preceding the date of the new offence under consideration.
315.In the case of the financial alternatives to prosecution – the “fiscal fine” and the compensation offer – the procurator fiscal can disclose details of these alternative disposals to the court whether the offer has been accepted by payment having been made, or whether acceptance has been deemed by the alleged offender taking no action in respect of the offer.
316.It is not intended that accepted “fiscal fines” or compensation offers, or completed work orders, should be regarded as criminal convictions for this or any other purpose. The relevant sections of the 1995 Act are all amended to make it clear that accepted alternatives to prosecution are to be regarded as “alternative disposals” for the purposes of this part of the Act.
317.In addition, the statute will now explicitly permit prosecutors, on conviction for an offence where an offer of an alternative to prosecution was made, to advise the court of the terms of any such offer.
318.This section inserts a new section 136B into the 1995 Act. The purpose of this section is to alter the operation of time bar in statutory cases where an alternative to prosecution has been offered. It is intended that this will avoid the situation where the time spent in offering an alternative which is then declined makes it difficult or impossible to take proceedings within statutory time limits.
319.Section 136B applies to conditional offers, compensation offers and work offers. Section 136B(1) provides that in connection with conditional offers and compensation offers, for the purpose of calculation of any period of time bar, the period between the date of any offer of an alternative, and the date of refusal of the offer or date of recall of deemed acceptance, is to be disregarded.
320.In the case of work offers, section 136B(1)(c) provides that the period between the date of the offer and the last date for acceptance of the offer is to be disregarded where the offer is refused. In addition, where the offer is accepted but not completed the time between the date of the offer and the date specified for completion of the order is to be disregarded.
321.Section 136B(2) provides that a prosecutor can certify the period of time which is to be disregarded for these purposes.
322.This section amends the 1995 Act to include new sections 226A to 226I. These introduce new arrangements for the enforcement of fines and other financial penalties, including provision for the appointment of fines enforcement officers, who will provide information and advice to the offender in relation to payment of the fine and will also have new sanctions to use against offenders who default in payment of their fines or penalties.
323.Subsection (1) makes provision for a new post of fines enforcement officer (FEO). FEOs will undertake a number of enforcement related duties previously undertaken by the courts, such as dealing with applications for further time to pay. They will also be responsible for a range of enforcement activity. The FEO will be an officer of the Scottish Court Service (SCS), an agency of the Scottish Executive.
324.Subsection (2) sets out the core functions of FEOs. These are
to provide information and advice to offenders about payment of fines or penalties, and
to secure compliance with the terms of an enforcement order made under section 226B.
325.Subsections (3) and (4) provide that where an offender is subject to more than one enforcement order the FEO must have regard to the total amount outstanding and, where there is an enforcement order in another sheriff court district from that in which the offender resides, the FEO for the district in which the offender resides may assume responsibility for the functions of the order. This is to ensure that only one FEO has responsibility for exercising functions under an enforcement order.
326.Subsections (5) and (6) provide that where an FEO takes responsibility for an enforcement order under subsection (4) that fact must be notified both to the offender and to any FEO for the district in which the enforcement order was made.
327.Subsection (7) empowers the Scottish Ministers to make further provision by regulation as to FEOs and their functions. In due course, this could be used to give FEOs additional functions or to modify the exercise of existing functions. The regulations will be subject to affirmative procedure.
328.Subsections (1) and (2) give the court discretion to make an enforcement order in relation to a fine. The expectation is that the court will make an enforcement order when considering whether to grant time to pay under section 214 or 215 of the 1995 Act. However, the court is not required to make an order if it does not consider that an order would be appropriate.
329.Subsection (7) provides that an enforcement order may be made by the court in the absence of the offender in relation to the payment of certain penalties, on the application of the clerk of court. Those penalties are detailed in subsections (4), (5) and (6). Subsection (7) applies where the offender:
has accepted or is deemed to have accepted a fixed penalty offer or compensation offer as an alternative to prosecution under section 302(1) or 302A(1) of the 1995 Act (subsection (4));
is liable to pay a fixed penalty under section 54 or section 62 of the Road Traffic Offenders Act 1988 which has been registered under section 71 of that Act, or is liable to pay (by virtue of section 131(5) of the Antisocial Behaviour etc. (Scotland) Act 2004) a fixed penalty notice issued under section 129 of that Act (subsection (5));
is the subject of a transfer of fine order in respect of a fine imposed in England and Wales in relation to which a collection order has been made (subsection (6)).
330.The enforcement order, a copy of which will be sent to all offenders, imposes a statutory requirement to pay the fine or penalty as specified in the order. The order will also contain certain information, as set out in subsection (8), including:
details of the fine or penalty;
the arrangements for making payment (including the time for payment and, if applicable, the number of instalments permitted by the court);
contact details of the fines enforcement officer; and
information about the effect of the order in the event that the offender defaults on payment of the fine.
331.The sanctions for non – compliance, as detailed in new sections 226D, 226E and 226F include seizure of an offender’s motor vehicle; a deduction from benefits order; earnings arrestment; and arrestment of an offender’s bank or building society account. The enforcement order empowers the FEO to apply these sanctions, subject to the provisions of sections 226D to 226F.
332.Subsections (9) & (10) prohibit the court (when making or intending to make an enforcement order) from imposing an alternative period of imprisonment or dealing with applications for further time to pay for as long as an enforcement order has effect. The order will cease to have effect if the penalty is fully paid or the court decides to revoke the order.
333.One of the core functions of the FEO (section 226A(2)(a)) is to provide information and advice to offenders as regards payment. The FEO will make contact with the offender following the making of an enforcement order and will set out the date or dates by which payment is due.
334.However, section 226C empowers the FEO to vary the arrangements for payment. Subsection (3) provides that an application to vary arrangements may be made orally or in writing. The FEO will, as provided in subsection (4), notify the offender of the decision to grant or refuse the application. Section 226H allows an offender to apply to a court for a review of a decision of a FEO regarding the variation of an enforcement order.
335.This section empowers a FEO to issue a ‘seizure order’ to immobilise and impound an offender’s motor vehicle. Subsection (4) requires the FEO to notify the offender when a seizure order has been carried out. Subsection (11) prohibits the seizure of a vehicle used by or primarily for carrying disabled persons.
336.Subsections (5) and (6) set out the process to be followed where the fine or penalty remains unpaid following seizure of a motor vehicle, and the powers available to the court. These include making an order for the sale of the vehicle, and applying the proceeds towards the unpaid fine or penalty.
337.Subsection (7) provides that where a third party claims to own a vehicle which has been seized and not yet disposed of, that third party may have the seizure order set aside if it can satisfy the FEO (or subsequently the sheriff) that their claim of ownership is valid. Subsection (8) makes clear that the provision in subsection (7) does not preclude any other proceedings for the recovery of the vehicle.
338.Regulations may be made under subsection (12) in order to provide greater detail about seizure orders, including the circumstances in which they may and may not be made. Subsection (13) provides examples of what the regulations may cover.
339.Section 226E enables the FEO to request the court to make an application for a deduction from benefits to be made from an offender, for the purpose of obtaining payment of a fine or penalty.
340.Section 226F provides that, when making an enforcement order, the court must also grant warrant for civil diligence. This warrant will authorise the FEO to execute arrestment of earnings and funds in bank accounts. The purpose is to obtain the amount of the penalty which has not been paid. The diligence powers of the FEO are subject to regulations which the Scottish Ministers may make about the circumstances in which diligence powers may be exercised and the application of other law relating to diligence. The intention is that any existing and new legislation relating to diligence (such as the Debtors (Scotland) Act 1987 and relevant provisions of the Bankruptcy and Diligence (Scotland) Act 2007) will apply to FEOs when they exercise diligence powers, subject to such modifications as may be necessary.
341.Subsections (1) and (2) make provision for any outstanding fine to be referred back to the court. Referral can take place where the FEO has formed the view that the fine or penalty, or the unpaid balance, is unlikely to be paid or where, for any other reason, the FEO considers it appropriate (for example, where the offender has failed to co-operate with the FEO). In these circumstances the FEO will, as outlined in subsections (3) and (4), provide a report to the court on the circumstances of the case.
342.Subsections (5) to (9) provide details of the procedure to be followed by the court on receipt of a report and reference from the FEO. This will involve an enquiry, in the offender’s presence, into the reasons for failure to pay the fine and penalty. The court is given a range of disposal options following such an enquiry. These include revoking the enforcement order and dealing with the offender as if the order had not been made. This could mean imposing a period of imprisonment.
343.This section provides that an offender may apply to the court for a review of a decision of a FEO in relation to an application for variation for further time to pay, or an order to immobilise and impound the offender’s motor vehicle. The application must be made within 7 days of being notified of the decision relating to further time to pay or the making of a seizure order. When determining the application, the court can confirm, alter or quash the decision of the FEO or make any other order that it considers appropriate.
344.This section sets out certain definitions for terms used in sections 226A to 226H, and describes the penalties to which these provisions apply. There is an order making power to allow additional penalties to be added to the definition of “relevant penalty”. This would have the effect of increasing the range of penalties for which the FEO could have responsibility.
345.Section 56 entitles Scottish Ministers to make provision, by means of an order subject to the affirmative procedure, implementing any obligation created by or arising under the council Framework decision on the application of the principle of mutual recognition to financial penalties in so far as they have effect in or as regards Scotland. The purpose of the Decision (2005/214/JHA of 24 February 2005) is to allow financial penalties imposed in criminal proceedings to be transferred to other member states for enforcement – improving enforceability of fines across the EU.
346.The purpose of this section is to provide that those who are in alleged breach of a probation or community service order will be provided with a copy of the report to the court detailing the grounds of the alleged breach. Service of the copy report is to be in accordance with provisions in the Act of Adjournal, and provision is made for postal service.
347.Subsection (1) makes the change for probation orders; and subsection (2) extends it to community service orders. Sections 232 and 239 of the 1995 Act are amended accordingly.
348.The purpose of this section is to permit breach of a restriction of liberty order to be proved by the evidence of one witness. This provision brings proof of breach of such orders into line with proof of the breach of probation, community service, drug treatment and testing, and supervised attendance orders. Section 245F of the 1995 Act is amended accordingly.
349.This section imposes a general duty on the Scottish Ministers to make provision for summary criminal courts. The Scottish Ministers are also given the power to establish JP courts by order, with reference to particular sheriff court districts. It is intended that JP courts will eventually replace district courts and will be established on a phased basis, sheriffdom by sheriffdom, for the purpose of delivering a unified summary criminal courts administration under the administration of SCS.
350.Before making an order establishing JP courts, the Scottish Ministers must consult the sheriff principal for the relevant sheriffdom. There is a presumption that there will be at least one JP court established for each sheriff court district, except where Scottish Ministers determine that a JP court is not necessary. Currently there are no district courts in the sheriff court districts of Lerwick, Orkney and Lochmaddy. It is not anticipated that any JP courts will be established in these districts.
351.Subsection (5) requires Scottish Ministers, in deciding whether a JP court is necessary, to take account of the amount of summary criminal business and the capacity of other JP or sheriff courts in the sheriffdom.
352.Subsection (6) provides that, where JP courts have been established, Scottish Ministers may subsequently, by order, provide for the relocation or disestablishment of a JP court. Subsection (7) provides that, before making such an order, Scottish Ministers must consult the sheriff principal for the relevant sheriffdom.
353.This section imposes a duty on Scottish Ministers to make provision for the organisation and administration for JP courts. The Scottish Ministers are also responsible for providing suitable and sufficient premises and facilities.
354.In making such provision, the Scottish Ministers may require local authorities to let or sub-let their premises to the Scottish Ministers for the purposes of the JP court, or to make their premises available for use as a JP court (e.g. through a licence arrangement). The level of rent that is payable, and the other terms of any lease, will be subject to agreement. Any dispute that the parties are unable to resolve is to be determined by an arbiter (subsection (6)). These provisions should be read in conjunction with section 65 which confers a power on the Scottish Ministers to transfer property that is used for or in connection with a district court.
355.This section places the responsibility for the efficient administration of JP courts in the sheriffdom on the sheriff principal. In exercising this responsibility, the sheriff principal may issue administrative directions to those involved in the administration of JP courts (other than the Scottish Ministers). The Scottish Ministers may also issue administrative directions for the purpose of ensuring the efficient administration of JP courts, subject to prior consultation with the sheriff principal.
356.The territorial jurisdiction of JP courts is set out in subsection (1), which provides that a JP court may try offences committed within the sheriff court district in which it is located, or in any other sheriff court district within the sheriffdom. This is similar to the territorial jurisdiction of the sheriff court. Further provision relating to the jurisdiction of JP courts is contained in sections 9 and 10 of the 1995 Act, as modified by paragraphs 9 and 10 of the schedule to this Act.
357.Subsection (4) provides that a JP or stipendiary magistrate may exercise their judicial functions at any place within the sheriffdom where s/he is appointed. Subsection (5) further provides that a JP or stipendiary magistrate may sign, at any place in Scotland, a warrant, judgement, interlocutor or other document relating to criminal proceedings within the sheriffdom where s/he is appointed. Subsection (6) makes it clear that a JP or stipendiary magistrate may exercise signing functions, as defined in subsection 76(6) of the Act, within Scotland.
358.Subsection (7) is a transitional provision. It ensures that, after a JP or stipendiary magistrate has been appointed for a sheriffdom (in terms of section 67 of the Act), s/he may continue to work within any remaining district court that lies wholly or partly within the sheriffdom.
359.Section 63(1) makes clear that the JP court has competence, subject to the provisions in sections 6 and 7 of the 1995 Act, to deal with summary proceedings in respect of offences. Section 7(1) of the 1995 Act provides that district courts have the power to deal with common law offences. That subsection is repealed by paragraph 9(2) of the schedule to this Act. The revised subsection 7(3) of the 1995 Act, which is inserted by the same paragraph of the schedule, instead makes it clear that district courts have the power to try any common law or statutory offences which are triable summarily.
360.Section 6(2) of the 1995 Act provides that a district court may be constituted by one or more JPs. Some district courts sit with benches of 3 JPs, in others only 1 JP presides. Section 6(2) is modified in the schedule to the Act and, as modified, will allow the JP court to be constituted by one or more JPs. However, section 63(2) provides the Scottish Ministers with the power to amend section 6(2) of the 1995 Act, by order, to provide that a JP court may be constituted by one JP only.
361.This section also makes provision relating to the staff of JP courts, including clerks of court. The clerk of a JP court will be a solicitor or advocate, and will provide legal advice to the court. Clerks of court and other staff will be appointed and employed by Scottish Ministers (in practice they will be employees of the SCS).
362.This section sets out the process for the disestablishment of district courts. The intention is that all of the district courts in a particular sheriffdom will be disestablished at the same time as JP courts are established in a sheriffdom under section 59 of the Act. The Scottish Ministers must consult the relevant sheriff principal and local authority before making an order to disestablish a district court.
363.The existing legislation governing the operation of district courts is the District Courts (Scotland) Act 1975. Subsection (4) provides for this legislation to be repealed by the Scottish Ministers by order. The intention is that the legislation relating to the operation of the district courts will be repealed for a particular sheriffdom at the same time as the district courts are disestablished and the JP courts are established. The parts of the legislation relating to the lay justice system (for example the provisions on the appointment and removal of justices of the peace) will be repealed across the country at the same time.
364.Subsections (5) to (8) contain transitional provisions for remaining district courts. Legislation relating to JP courts (including the provisions in this Act relating to matters such as the sentencing powers of the JP court) may be applied to district courts pending their disestablishment.
365.This section provides that the Scottish Ministers must make a scheme for the transfer of the employment of certain members of district court staff to the Scottish Administration. Such a scheme may be referred to in an order made under section 64(1) of the Act. The scheme may apply to some or all staff who work in the district court that is being disestablished. It may, by way of example, apply only to staff that spend more than a particular proportion of their working time on district court duties. Subsection (4) makes it clear that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246) will apply to staff transferred under this section.
366.Subsections (5) to (8) make provision for the transfer to, and vesting in, Scottish Ministers of district court properties and liabilities when district courts are disestablished under section 64(1). Subsection (6) reflects that fact that the Scottish Ministers are not required to transfer all district court properties to themselves. Some properties may remain with the local authority, depending on the circumstances of each case. Subsection (8) provides that a certificate issued by Scottish Ministers is conclusive evidence of the transfer of any such property or liability.
367.This section makes provision for the transfer of both continuing and recently completed district court proceedings, including related records, productions and other documents, to the appropriate JP court. Recently completed proceedings are proceedings that have been completed not more than 5 years before the date on which the district court in question is disestablished.
368.The sheriff principal for the sheriffdom in which the district court is located will determine the relevant JP court to which proceedings and records should be transferred.
369.This section provides for the appointment of justices of the peace.
370.Subsection (1) makes it clear that JPs will be appointed by Scottish Ministers on behalf of and in the name of the Queen. This provision is essentially the same as the existing provision which provides for the appointment of JPs – section 9(1) of the District Courts (Scotland) Act 1975 (the 1975 Act).
371.Subsection (2) indicates that JPs are to be appointed to a sheriffdom. This provision should be read alongside section 62(4) which makes it clear that they will be able to perform judicial functions in any part of the sheriffdom to which they are appointed. Under sections 9(1) and 26(1) of the 1975 Act, JPs are currently able to perform judicial functions within the local authority area to which they are appointed. The Act therefore has the effect of widening the geographical area within which JPs can act.
372.Subsection (3) states that a JP’s appointment is for a term of five years. Under the 1975 Act, there was no limit to the length of a JP’s appointment (although all “full justices”, who were eligible to sit on the bench, had to become “signing justices” on the supplemental list when they reached the age of 70, and therefore ceased to be able to sit on the bench).
373.Subsection (5) requires the Scottish Ministers to comply with any order that they make as to procedure and consultation for appointing JPs. This provision reflects the terms of section 9(8A) of the 1975 Act, which was inserted into the 1975 Act by the Bail, Judicial Appointments etc (Scotland) Act 2000. No regulations have been made under section 9(8A) of the 1975 Act. An order under this subsection is likely to make it clear that candidates will be recommended to Scottish Ministers for appointment as JPs, prior to their first five year appointment, by Justice of the Peace Advisory Committees (JPAC), chaired by the sheriff principal of the relevant sheriffdom.
374.Further to subsection (6)(a), each JPAC will have a mixture of lay members and JPs. The order is also likely to make it clear that each JPAC should agree protocols with the Judicial Appointments Board for Scotland, setting out how it will recruit JPs. These protocols are likely to deal with matters such as the way in which JP vacancies should be publicly advertised.
375.Subsections (7) and (8) deal with existing justices of the peace. Subsection (7) makes provision for their appointment to be terminated on a date specified by order. However, the effect of subsections (7)(b) and (8) is that any full JPs who have been placed on the court rota during the 12 months before that specified date are to be appointed as a JP under subsection (1) unless they decline their appointment. This provision will ensure that all existing JPs who sit on the bench become subject to the new arrangements for JPs set out in this part of the Act. The intention is that the Executive will write to all current full JPs several months before their appointment is due to be terminated. It will explain that their appointment will cease on a given date, but state that they will be appointed as JPs providing they have been, or will be, placed on the court rota during the twelve months prior to that date and that they agree to meet certain conditions (these are dealt with in the next section). JPs who agree to this will return a form to the Executive, and will be reappointed as JPs. Their new appointments will start on the day that their old appointments cease.
376.This section sets out the conditions which may be attached to the appointment of justices of the peace.
377.Subsection (1) states that somebody is not to be appointed as a JP unless they ordinarily live in, or within 15 miles of, the sheriffdom to which they are being appointed. This subsection only applies to a JP's first appointment. A JP who moved outside of the sheriffdom during the course of their five year appointment, but who still undertook duties on the bench within the sheriffdom to which they were appointed, would be eligible for reappointment at the end of five years, but could be subject to a recommendation against reappointment made by the sheriff principal in terms of section 70(3)(c).
378.The effect of subsection (1) is slightly different to that of sections 9(3) and 9(4) of the 1975 Act. These provisions of the 1975 Act prevent a JP from holding office, or acting as a JP, unless they live in or within 15 miles of their local authority area. They also allow Scottish Ministers to waive this requirement if they consider it to be in the public interest to do so. The new provisions remove this element of discretion at the time of a JP's appointment.
379.Subsection (2) states that the appointment of JPs shall be made subject to conditions relating to training, appraisal and their availability to meet the business needs of the relevant part of their sheriffdom. The intention is that JPs will need to accept these conditions prior to being appointed. Subsection (3) makes it clear that the sheriff principal will assess the likely court business in their sheriffdom. The sheriff principal’s assessment will be referred to when setting conditions on JPs’ required availability.
380.Subsections (4) and (5) require the Scottish Ministers to pay allowances to JPs according to a scheme devised by them. These allowances are likely to cover reimbursement for expenses incurred in fulfilling the duties of a JP, and also reimbursement for any loss of earnings as a result of undertaking a JP's duties. Under section 17(6) of the 1975 Act, allowances to JPs are currently paid by local authorities.
381.This section allows Ministers to make provision by order in relation to the training and appraisal of JPs and future JPs. It also allows them to establish committees which will have responsibility for key functions relating to training and appraisal.
382.Under the 1975 Act, Scottish Ministers have the power to make schemes and provide courses for the instruction of justices of the peace. They do not however have any powers relating to appraisal.
383.In practice, the Executive envisages that the training and appraisal of JPs will come under the overall oversight of the Lord President. That is the reason for the provisions at subsection (2) and (4).
384.It is likely that candidates, having undergone a recruitment process, will be required to undergo a mandatory induction scheme before being recommended to Ministers for appointment as JPs. The Executive currently envisages that the content of this scheme will be drawn up or approved by the Judicial Studies Committee, a non-statutory body which organises training courses for the Scottish judiciary. The scheme would then be issued or approved by the Lord President.
385.The Executive also envisages that all existing JPs will be required to undertake a minimum amount of ongoing training each year, including being required to undertake refresher training within two years of taking up their new five year appointments. Again, it is likely that the Judicial Studies Committee would draw up or approve these ongoing training requirements, which would then be issued or approved by the Lord President.
386.With regard to appraisal, the Executive envisages that JPs will be appraised against a competence framework which would be drawn up or approved by the Judicial Studies Committee. This competence framework would then be approved by the Lord President.
387.Subsection (3) allows the order in relation to training and appraisal to include the power to establish committees. These committees will have the power to devise or adopt appropriate training and appraisal courses and systems; to ensure that these courses or systems are delivered or used; and to provide advice about training and appraisal. The composition and functions of these committees will be set out in more detail in the draft order. It is likely that groups in each sheriffdom, mainly or entirely composed of JPs, will be given responsibilities relating to the delivery of appraisal and training within the sheriffdom. In doing so, they will effectively assume the responsibilities for training that justices' committees currently have under section 16(1)(c) of the 1975 Act.
388.Subsection (1) makes it clear that a JP is eligible for reappointment on the expiry of his or her five year appointment. A JP who has resigned from office is also eligible to be reappointed.
389.The effect of subsection (2) is that a JP whose five year appointment has finished shall be reappointed unless certain circumstances apply. The subsection also sets out what those circumstances are.
390.Subsection (2)(d) makes it clear that a JP shall not be reappointed if the sheriff principal for the JP's sheriffdom recommends to Scottish Ministers that the JP should not be reappointed. Subsection (3) sets out the grounds on which the sheriff principal may make such a recommendation. They are that the JP has inadequately performed the functions of a JP; that the JP has, without good reason, failed to meet requirements under section 68(2) relating to training, appraisal or availability to meet the business needs of the relevant part of their sheriffdom; that the JP no longer lives within fifteen miles of the sheriffdom to which they are appointed; or on such other ground as the sheriff principal considers relevant (one example of this might be if the JP had been convicted of a number of motor offences during the previous five years).
391.The provision at subsection (3)(a) relating to inadequate performance of the functions of a JP is intended to allow a sheriff principal to recommend against reappointment if, for example, a JP’s appraisals had demonstrated that the JP was not performing adequately.
392.This section deals with the circumstances in which a JP can be removed from office. At present, section 9A of the 1975 Act deals with the removal of a full JP from office.
393.In keeping with the existing law, subsections (1) and (2) provide that a JP may only be removed from office during the five year term of appointment by order of a tribunal appointed by the Lord President of the Court of Session.
394.Subsection (6) makes it clear that a tribunal appointed by the Lord President of the Court of Session can order a JP's removal on only a limited number of specified grounds. Subsection (6) also states that the tribunal's investigations are to be carried out at the instance of the sheriff principal for the sheriffdom to which the JP is appointed. This represents a change from section 9A(2) of the 1975 Act, which provides that the tribunal's investigation is to be carried out at the request of the Scottish Ministers.
395.The combined effect of subsection (4)(a), subsection (5) and subsection (6) is to ensure that the sheriff principal who chairs the tribunal and sheriff principal who requests the tribunal's investigation will be different persons. Under section 9A(2) and (4) of the 1975 Act, tribunals are requested by Scottish Ministers and chaired (unless the Lord President decides otherwise) by the sheriff principal of the JP's sheriffdom. Under subsections (4)(a) and (6) of this section, tribunals will be instigated by the sheriff principal of the sheriffdom to which the JP is appointed, and chaired by a different sheriff principal.
396.Subsection (6)(b) states that a possible ground for removing a JP is that the JP has inadequately performed the functions of a JP. As with the provision at section 70(3)(a), it is anticipated that the tribunal may make this finding if, for example, a JP’s appraisals had demonstrated that the JP was not performing adequately as a JP. It is envisaged that “inadequate performance” will constitute a lower test than that of “inability” as a ground for removal.
397.Subsections (7) and (8) allow the Scottish Ministers to make provision by order regarding the tribunal. It is likely that orders regarding the conduct of the tribunal will be similar to the existing Justices of the Peace (Tribunal) Regulations (Scotland) 2001, although they will take account of the differences, as outlined above, between the provisions of this Act and those of the 1975 Act which relate to tribunals.
398.Subsection (7)(b) allows any order made by Scottish Ministers to authorise a specific body or class of persons to recommend to a sheriff principal that s/he instigate the establishment of a tribunal. This means that, for example, any committee established to oversee the appraisal of JPs in a sheriffdom under section 69(3) of this Act could also be authorised to recommend to a sheriff principal the instigation of a tribunal in order to investigate whether someone has inadequately performed their functions as a JP.
399.Subsection (9) makes it clear that anybody who is removed from office as a JP is ineligible for reappointment as a JP. This provision reflects the terms of section 9A(10) of the 1975 Act.
400.This section disqualifies a solicitor who is a JP from acting in any proceedings in a JP court in the sheriffdom to which they have been appointed as a JP. Subsection (2) extends this disqualification to the solicitor's staff and – where the solicitor is a partner of a law firm – to any other partner or member of staff of the partnership. This provision reflects the terms of section 13 of the 1975 Act.
401.This section mirrors section 13A of the 1975 Act. It prevents someone from being appointed as a JP or, if they have been appointed, from acting as a JP, if their estate has been sequestrated in Scotland or if the person has been adjudged bankrupt outside Scotland. The disqualification ceases, however, if the circumstances set out in subsections (2) and (3) apply.
402.Under section 70(2)(c) of this Act, a JP whose estate has been sequestrated in Scotland, or who has been adjudged bankrupt, may not be reappointed as a JP at the end of their five year term of appointment.
403.This section provides for the appointment of stipendiary magistrates. It will replace section 5 of the 1975 Act. Stipendiary magistrates differ from lay justices because they are professional judges who must have been a solicitor or advocate for at least five years. Although all local authorities, with the approval of Scottish Ministers, currently have the power to appoint stipendiary magistrates, only Glasgow City Council currently does so. Stipendiary magistrates have the same criminal jurisdiction as a sheriff when sitting summarily, which means that they can sentence people for up to three months in custody (or six or nine months under certain circumstances) and fine them up to £5,000. Under the provisions of sections 43 to 45 of this Act, they will be able to sentence people to a year’s imprisonment, and fine them £10,000. Justices of the peace can sentence people to two months’ imprisonment and fine them £2,500.
404.Subsection (1) states that stipendiary magistrates are to be appointed by Scottish Ministers on behalf of and in the name of the Queen. Under the 1975 Act, stipendiary magistrates are appointed by a local authority, subject to the approval of Scottish Ministers.
405.Subsection (2) states that a stipendiary magistrate will be appointed for a sheriffdom. A stipendiary magistrate will be able to sit in any JP court within the sheriffdom to which they are appointed (section 62(4) of the Act).
406.Subsection (3) makes it clear that the appointment of a stipendiary magistrate is to be conditional upon Scottish Ministers approving the decision to make such an appointment, on the advice of the sheriff principal for that sheriffdom.
Criminal Proceedings etc (Reform) (Scotland) Act 2007