Office of Public Sector Information
407.Subsection (6) makes it clear that a stipendiary magistrate may exercise the same judicial and signing functions as a JP, and may use the title of office of JP in discharging those functions. This means, for example, that a stipendiary magistrate is able to sign any documents for which a JP's signature would be competent. Stipendiary magistrates will continue to have the same jurisdiction as a sheriff sitting summarily (see section 7(5) of the 1995 Act, as amended by paragraph 9 of the schedule to this Act).
408.Subsections (7) and (8) bring the appointment terms of full-time stipendiary magistrates into line with those of other full-time professional members of the judiciary in Scotland, by providing for them to be appointed until the age of 70. Under the 1975 Act, retirement for stipendiary magistrates is set according to the conditions of service “applicable to service in local government.” The provisions for the appointment terms of part-time stipendiary magistrates are similar to those for JPs at subsections 67(3) and (4) of this Act. Part-time stipendiary magistrates will be appointed for renewable terms of five years, subject to the entitlement to resign at any time and need to retire at 70.
409.Subsection (9) requires Scottish Ministers to comply with any order that they make as to procedure and consultation for appointing stipendiary magistrates. Subsection (10) illustrates what such an order may relate to. This allows Ministers to set out how stipendiary magistrates would be recruited. The order could, for example, set out any role that the Judicial Appointments Board for Scotland may assume in the recruitment process. These subsections replicate the provisions for JPs at section 67(5) and (6).
410.Subsection (12) concerns those currently holding the office of stipendiary magistrate. It replicates the provisions made for JPs at section 67(7). Subsection (12) makes provision for stipendiary magistrates' appointment to terminate on a date specified by order. It also states that they are to be appointed as a stipendiary magistrate under section 74 unless they decline their appointment. Their new appointments will start on the same the day that their old appointments cease.
411.This section makes provision for the payment, reappointment, removal and disqualification of stipendiary magistrates.
412.Subsection (1) gives Scottish Ministers the power to determine the remuneration, allowances and pension provision of stipendiary magistrates. The exact mechanism by which Ministers will determine this is still to be decided. One possibility is that the remuneration of stipendiary magistrates will be linked to another, independently determined, pay scale. Subsection (2) makes it clear that Scottish Ministers are to pay the expenditure arising from subsection (1).
413.Subsection (3) specifies those provisions in the Act relating to JPs which also apply to stipendiary magistrates. These provisions relate to terms of appointment, reappointment, removal and disqualification.
414.The provisions in section 70 of the Act will, in effect, only apply to part-time stipendiary magistrates, since they relate to reappointment at the end of a five year term of appointment. A part-time stipendiary magistrate is to be reappointed at the end of their five year term unless they decline their reappointment; they are aged 69 years or over; they are disqualified under the provisions of section 73 relating to sequestration and bankruptcy; or the sheriff principal makes a recommendation against reappointment. Sheriffs principal will be able to recommend against the reappointment of part-time stipendiary magistrates on the grounds that they have not complied with any terms of appointment relating to their availability to meet local business needs (this provision could be especially relevant for part-time stipendiary magistrates) and on such other grounds as the sheriff principal considers relevant. Since stipendiary magistrates will not be subject to training, appraisal or residential requirements, failure to comply with any of those is not specified as a possible ground for removal. Since stipendiary magistrates will not be subject to appraisal, “inadequate performance” does not constitute a specific ground for a recommendation against reappointment for part-time stipendiary magistrates.
415.Similarly, at subsection (3)(c) the “inadequate performance” provision set out at section 71(6)(b) of this Act as a possible ground for removing JPs does not apply to stipendiary magistrates.
416.Under subsection (3)(d), the provisions of sections 72 and 73 apply to stipendiary magistrates as well as to JPs. These sections relate to the disqualification of solicitors who are JPs, and disqualification in the case of sequestration and bankruptcy.
417.This section sets out who, in future, will be able to carry out the signing functions which can currently be undertaken by people on the supplemental list under sections 15(8) and (9) of the 1975 Act.
418.Subsection (1) makes it clear that no person who is a member of a local authority, a member of the Scottish Parliament, a member of the House of Commons or a member of the House of Lords can sit on the bench as a JP. JPs who become members of these bodies can still, however, exercise the signing functions set out at subsection (6). In addition, any member of a local authority can exercise the signing functions set out at subsection (6), regardless of whether or not they are a JP.
419.Subsection (6) defines what is meant by "signing functions". The definition is the same as that currently used in section 15(9) of the 1975 Act, and limits the range of documents which can be signed. For example, local authority members will be able to countersign written declarations that somebody has lost their insurance policy, or that they wish to change their name. They are also able to confirm facts within their own knowledge – for example by signing passport applications and shotgun licensing applications for people whom they know. However unlike “full” justices of the peace under the 1975 Act, or any justice of the peace under the current Act, people who can only undertake “signing functions” cannot sign affidavits (since these record oral statements) or warrants.
420.These sections are different in their effect from the provisions of the 1975 Act which related to signing functions. Under sections 15(8) and (9) of the 1975 Act, anybody placed on the supplemental list could undertake signing functions, but no other functions, by virtue of their office. Under section 15(1) of the 1975 Act, all JPs are currently placed on the supplemental list once they reach the age of 70. Under section 12 of the 1975 Act, as amended by the Bail, Judicial Appointments etc (Scotland) Act 2000, councillors are not able to hold office as full justices, but can be entered onto the supplemental list. Under section 11(1) of the 1975 Act, local authorities are currently allowed to nominate up to one quarter of their councillors to be entered onto the supplemental list.
421.Under the provisions of this Act, there will not be a supplemental list. JPs who have reached the age of 70 will not therefore have signing functions. Under subsections (2) and (3), all councillors will automatically have signing functions by virtue of their office, which will allow them to sign the range of documents set out in subsection (6). If a person were appointed as a JP after this section's provisions had come into force, therefore, and then became a councillor, they would remain as a JP at least until the end of their five year term of appointment, but would only be able to undertake signing functions. In addition, the bar on councillors sitting on the bench as justices will be extended to MPs, MSPs and members of the House of Lords.
422.The provisions at subsections (3) and (4) make it clear that forms (such as statutory declarations regarding lost insurance policies) which specify a “JP” as a possible signatory, can also be signed by a stipendiary magistrate or local authority member, if they are exercising signing functions.
423.Subsection (5) provides that JPs and councillors cannot charge a fee for exercising signing functions.
424.This section makes provision for the keeping of records of those holding office as JPs and stipendiary magistrates. It also provides for the appointments and acts of JPs and stipendiary magistrates to be valid, even if certain requirements set out in this Act have not been met.
425.Subsection (1) requires Scottish Ministers to keep a list of all people who hold office as a JP or stipendiary magistrate; a record of the instruments of appointment for all JPs and stipendiary magistrates; and a record of any order removing a JP or stipendiary magistrate from office. Subsections (2) and (3) require Scottish Ministers to send the list and record to the sheriff clerk of each sheriff court, and for arrangements to be made to ensure that the list is available for public inspection.
426.Subsections (4) and (5) make it clear that the appointments and acts of JPs and stipendiary magistrates are still valid, even if their appointment has not complied with the requirements for procedure and consultation set out in an order made under section 67(5) or section 74(9); the requirement that the JP ordinarily live in or within 15 miles of their constituency at the time of their first appointment has not been met; or if a JP has breached one of their terms of appointment as set out in section 68(2).
427.This section provides for the appointment of Her Majesty’s Inspector of Prosecution in Scotland by the Lord Advocate and makes provision for the length of appointment and associated matters. Subsection (5) allows the Inspector to authorise any person to exercise any functions of the Inspector.
428.This section provides for the functions of the Inspector.
429.Subsection (1) provides that the task of the Inspector is to secure the inspection of the Crown Office and Procurator Fiscal Service (the “Service”). Subsection (2) makes provision for a report to be provided by the Inspector to the Lord Advocate on any particular matter referred to the Inspector by the Lord Advocate. These subsections place the current administrative arrangements under statutory authority. In practice the Inspector and his or her staff will be civil servants.
430.Subsections (3) and (4) provide authority for the Inspector to require information of any person directly involved in the operation of the Service of a general or specific character including in electronic or documentary form. Subsection (5) places a duty on the Inspector to provide the Scottish Ministers with details of any expenditure incurred in the exercise of the Inspector’s functions.
431.Subsection (6) requires the Inspector to submit an annual report to the Lord Advocate. Subsection (7) allows the Lord Advocate to comment on the draft annual report before the annual report is submitted under subsection (6). Subsection (8) provides for the annual report to be laid before the Scottish Parliament.
432.Subsection (9) ensures the independence of the Inspector.
433.This section introduces the schedule to the Act which makes amendments to certain enactments.
434.This section regulates the order making powers that are to be found in the Act. All orders will be made by statutory instrument. Subordinate legislation powers which are inserted into the 1995 Act are regulated by that Act.
435.This allows the Scottish Ministers to make ancillary provision in statutory instruments in consequence of the Act.
436.This section provides definitions.
437.This section provides for commencement of the Act to be made by order, except for sections 81 to 83 which come into force on Royal Assent.
438.Paragraph 1 is consequential upon Scottish Ministers having the responsibility for the administration of JP courts. They will also have responsibility for JP court clerks.
439.Paragraph 2 provides for amendments to the 1937 Act that will make it clear that the sheriff principal will be responsible for the preservation of the records of the JP courts within his or her sheriffdom. New section 2A is added to the 1937 Act which makes provision for the storage of JP court records. These provisions are largely in line with the provisions in place for the storage of sheriff court records, with several exceptions. They provide that the Sheriff Principal may, on the application of the Keeper of the Records of Scotland (“the Keeper”), make an order directing that selected JP court records of that sheriffdom shall be transmitted to the Keeper. This is in contrast to sheriff court records where an order of the Lord President is required. Subsection (2) of new section 2A provides that such an order shall not apply to any record less than 10 years old unless the sheriff principal is satisfied that adequate provision cannot otherwise be made. This again is in contrast to the provision for sheriff court records where records must generally be at least 25 years old. JP court records are to be transmitted to the Keeper within six months of the date of the order whereas sheriff court records cannot be transmitted earlier than three months from the date of the order.
440.Paragraph 3 is consequential on the changes made by section 51 of the Act which introduces work orders. It provides that a person who accepts such an order is subject to the supervision of the Social Work department of the area where s/he is carrying out that work.
441.Paragraph 4 amends the Education (Scotland) Act to allow local authority prosecutions under that Act to be brought in the JP court.
442.Paragraph 5 is consequential on section 14 of the Act. It amends the Legal Aid (Scotland) Act 1986 and is intended to replicate, in summary proceedings, changes made to solemn proceedings by the Criminal Procedure (Amendment) (Scotland) Act 2004. The amendments extend the availability of automatic criminal legal aid in terms of subsection 22(1)(dd) of the 1986 Act to solicitors who have been appointed by the court to deal with a summary trial in the absence of the accused; and disapply the provisions of section 31(1) of the 1986 Act, which allows the legally aided accused to select his or her own solicitor in such a case. If the case is proceeding in the absence of the accused s/he will not be in a position to choose a solicitor.
443.Paragraph 6 amends section 133(5)(b)(ii) of the Criminal Justice Act 1988. The amendment updates a reference to make clear that the Scottish Ministers can make payments of compensation for a miscarriage of justice where a conviction has been quashed on a reference from the Scottish Criminal Cases Review Commission to the High Court of Justiciary. This corrects a legislative oversight and has a retrospective effect.
444.Paragraph 7 is consequential upon the establishment of JP courts and inserts references to that court in place of the district court.
445.Paragraph 8 provides that any income received from fixed penalty notices issued under the Act will accrue to the issuing authority. This is consequential on the disestablishment of the district court and the intended repeal of section 23(2) of the 1975 Act.
446.Paragraph 9 is consequential upon the creation of JP courts. Subparagraph 1 substitutes references to JP courts for district courts where they appear in section 6 of the Act. The subparagraph further provides that prosecutions under the Education (Scotland) Act 1980 may be brought in the JP court by someone other than the procurator fiscal. This will allow local authority prosecutions to be brought in the JP court.
447.Subparagraph (2) repeals subsections (1) & (2) of section 7 of the 1995 Act and makes further consequential amendments to that section, clarifying the powers of the district court (and therefore the JP court, post-introduction).
448.Subparagraph (3) removes the requirement for the sheriff principal to consult the local authority before prescribing court holidays.
449.Subparagraphs (4) & (5) are consequential on the introduction of JP courts.
450.Subparagraph (6) amends section 9 of the 1995 Act and provides that where several offences have been committed in different sheriff court districts the accused may be tried on a complaint in any of the JP courts for any one of those districts.
451.Subparagraph (7) repeals section 9A of the 1995 Act. Equivalent provision to that contained in that section is made in section 62(5) of the Act.
452.Paragraph 10 amends section 10 of the 1995 Act and provides that crimes committed in different sheriff court districts may be prosecuted on complaint in any of the sheriff courts or JP courts in which the alleged offences took place. The present provisions may create a doubt as to whether the prosecution requires to be on indictment.
453.Paragraph 11 inserts a new section 10A into the 1995 Act and is consequential upon sections 22 and 31 of the Act. It confers jurisdiction upon the sheriff and the procurator fiscal of the relevant courts where proceedings have been initiated in or transferred to a court other than that where the offence took place. This is intended to avoid any doubt over jurisdiction as otherwise conferred by sections 4, 9 and 10 of the 1995 Act.
454.Paragraph 12 makes technical amendments which are consequential on provisions in relation to solemn warrants in sections 32 and 33 of the Act.
455.Paragraph 13 makes minor amendments to sections 72F and 72G of the 1995 Act. The relevant provisions of that Act presently relate to “proceedings on indictment”. The amendments clarify the scope of those provisions by making it clear that all solemn proceedings are covered, whether or not the stage of service of an indictment has been reached.
456.Paragraph 14 makes provision consequential upon sections 3 and 27 of the Act.
457.Paragraph 15 subparagraph (1) deletes certain words that are unnecessary.
458.Subparagraph (2) makes a number of minor amendments that tidy up existing provisions.
459.Subparagraph (3) provides for intimation to be made to the Crown Agent rather than the Lord Advocate in bail appeals made by witnesses.
460.Paragraph 16 makes various provisions in relation to appeals.
461.Subparagraph (1) makes changes to the appeal system in solemn cases. Section 107 of the 1995 Act is amended. The timescale for seeking leave of the High Court to rely on grounds of appeal which have been deemed to be unarguable at an earlier sift is amended. In consequence, the procedure for notification of the application to the Crown Agent is adjusted.
462.Subparagraphs (2), (3), (4), and (5) adjust existing provisions for the sake of accuracy in the 1995 Act.
463.Subparagraph (6) rectifies an omission in section 119(11) of the 1995 Act by substituting new cross references in that subsection to parts of section 65 of the Act (relating to custody time limits in solemn proceedings). The effect is that where the High Court grants authority to bring a new prosecution under section 118(1)(c) of the 1995 Act in disposing of an appeal, and the accused is remanded in custody pending trial, s/he will have the protection of the custody time limits in section 65 in both Sheriff Court and High Court solemn proceedings.
464.Paragraph 17 makes minor adjustments to section 135 of the 1995 Act, and is consequential on the introduction of section 102A into that Act by section 32 of this Act.
465.Paragraph 18(1) is consequential on the introduction of section 32A into the 1995 Act by section 5 of this Act.
466.Paragraph 18(2) and (3) make changes to the appeal system in summary cases. Subparagraph (2) amends section 180 of the 1995 Act, which deals with appeals against conviction, and subparagraph (3) amends section 187, which deals with appeals against sentence. The effect of the amendments is identical. The timescale for seeking leave of the High Court to rely on grounds of appeal which have been deemed to be unarguable at an earlier sift is amended. In consequence, the procedure for notification of the application to the Crown Agent is adjusted.
467.Paragraph 18(4) is consequential on the introduction of section 32A into the 1995 Act by section 5 of this Act.
468.Paragraph 19 amends section 210A of the Criminal Procedure (Scotland) Act 1995 which makes provision about the imposition of extended sentences by adding to the list in that section the new offences created by the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.
469.Paragraph 20 makes amendments to sections 211, 217, 222 and 223 of the 1995 Act. The amendments make further provision in relation to the collection and enforcement of fines.
470.Subparagraph (1) amends section 211(6) of the 1995 Act, which makes provision as to whom fines should be paid and accounted for. The word “summary” is deleted from subsection (6) in order to provide that all court imposed fines are to be subject to the provision in section 211(6). The words “clerk of court” are substituted with the words “clerk of any court, or to any other person (or class of person) authorised by the Scottish Ministers for the purpose”. This provides flexibility as to the individual or office holder who, in future, should be responsible for the collection of fines and will allow, for example, certain accounting functions to be carried out centrally, rather than by individual clerks of court. The words “by him” are also deleted from the subsection – they are no longer being necessary in view of the other changes being made. This subparagraph also repeals subsection (5) of section 211. Section 211(6) now makes provision in relation to the payment of all court imposed fines, so section 211(5) is deleted as unnecessary.
471.Subparagraph (2) is consequential on the introduction of Fines Enforcement Officers by this Act and provides that where an offender who has been fined and is under the supervision of an officer of the local authority fails to adhere to the payment arrangements for that fine the report that will be produced by the local authority officer should be submitted to the FEO where an enforcement order is in force in respect of the fine. Section 226G(4) (as inserted by section 55 of this Act) provides that the FEO must include a copy of that report with the report s/he is required to produce to the court when referring a case back to court.
472.Subparagraph (3) makes amendments to section 222 of the 1995 Act, which sets out the procedure for the transfer of fines, both within Scotland and between Scotland and the rest of the UK. It provides that a transfer of fines order may, in future, be made at the instance of the clerk of court rather than the court. It inserts a new subsection (1A) into section 222 which provides that the clerk of court in any court within a sheriffdom may transfer a fine to any other court within the same sheriffdom for the purpose of enforcement. This provision will enable the clerk of court to transfer all outstanding fines against an offender within the sheriffdom to a single court, so that, where an offender needs to appear in court in respect of outstanding fines, all fines outstanding against that offender can be considered together at the one hearing. Taken together, these provisions will allow the clerk of court to transfer all fines (from both within and outwith the sheriffdom) to a single court in order that they may all be considered at one court hearing where it proves necessary to do so. Other consequential amendments are made.
473.Subparagraph (4) amends section 223 of the 1995 Act, which makes provision in relation to the procedure to be followed by clerks of court in relation to the transfer of fines. It is provided that where a transfer of fine order is made the clerk of the receiving court requires to remit or account for the fine to the court in which it was originally imposed if that court is outwith Scotland. Other consequential amendments are made.
474.Paragraph 21 is consequential upon section 5 of this Act, and removes the right of the prosecutor to be heard on bail post-conviction as provided for in section 245J(5) of the 1995 Act..
475.Paragraph 22 is consequential upon the change to the legal basis for the appointment of stipendiary magistrates.
476.Paragraph 23 amends section 283 of the 1995 Act. That section deals with certification of evidence obtained using video surveillance. The amendment expands the terminology used to include the recording of sounds as well as visual images, and to allow for recordings to be made on devices other than video tape.
477.Paragraph 24 is consequential upon the increase in sentencing power of the sheriff provided for in part 3 of this Act.
478.Paragraph 25 inserts definitions into the 1995 Act as a consequence of the establishment of JP courts.
479.Paragraph 26 makes further amendments to the 1995 Act as a consequence of the introduction of JP courts.
480.Paragraph 27 repeals sections 8 to 11 of, and paragraphs 2 and 3(2) of the schedule to, the 2000 Act which make provision for the appointment and functions of JPs. Sections 67 to 77 of the Act make new provision for the appointment and functions of JPs. The repeal of section 11 and para 3(2) of the schedule to the 2000 Act is consequential on allowing education prosecutions to take place in JP courts.
481.Paragraph 28 makes provision consequential on section 19 of the Act.
482.Paragraph 29 makes a consequential amendment to the Public Appointments and Public Bodies etc. (Scotland) Act 2003 to remove Justice of the Peace Advisory Committees (JPACs) from the list of specified authorities which are subject to the Code of Practice for Ministerial Appointments to Public Bodies in Scotland. The amendment is a consequence of the change in the way in which JPAC members are appointed. At present, all appointments covered by schedule 2 to the Public Appointments and Public Bodies etc. (Scotland) Act 2003 are made by Ministers or on the recommendation of Ministers. In future, the Executive anticipates that JPAC members will be appointed by sheriffs principal, rather than by Ministers. Future inclusion of JPAC appointments in Schedule 2 to the 2003 Act would therefore be inappropriate.
483.Paragraph 30 makes provision consequential on section 62(5) of the Act, and generally in connection with the establishment of JP courts.
484.Paragraph 31 provides that any income received from fixed penalty notices issued under the 2003 Act will accrue to the issuing authority. This is consequential on the disestablishment of the district court and the intended repeal of section 23(2) of the 1975 Act.
485.Paragraph 32(a) provides that any income received from fixed penalty notices issued under section 51 of the 2004 Act will accrue to the issuing authority. This is consequential on the disestablishment of the district court and the intended repeal of section 23(2) of the 1975 Act. Other amendments consequential on the establishment of the JP court are made.
486.Paragraph 33 makes changes to enactments as a consequence of the introduction of JP courts. It also makes provision for Scottish Ministers to make further consequential amendments in that regard if necessary.
487.The following table sets out, for each Stage of the proceedings in the Scottish Parliament on the Bill for this Act, the dates on which the proceedings at that Stage took place, the references to the Official Report of those proceedings, the dates on which Committee Reports and other papers relating to the Bill were published, and references to those Reports and other papers.
| Proceedings and Reports | Reference |
|---|---|
| Introduction | |
| Bill As Introduced, 27 February 2006 | Bill as introduced (SP Bill 55) |
| Preliminary Discussion | |
| Finance Committee | |
| 7th Meeting, 7 March 2006 | Col 3501 |
| Justice 1 Committee | |
| 9th Meeting, 22 March 2006 | Item in private |
| 10th Meeting, 29 March 2006 | Item in private |
| Stage 1 | |
| Finance Committee | |
| 11th Meeting, 18 April 2006 | Col 3511 |
| Justice 1 Committee | |
| 11th Meeting, 19 April 2006 | Col 2821 |
| 13th Meeting, 3 May 2006 | Col 2940 |
| 15th Meeting, 10 May 2006 | Col 3009 |
| 16th Meeting, 17 May 2006 | Col 3049 |
| 18th Meeting, 24 May 2006 | Col 3157 |
| 20th Meeting, 31 May 2006 | Col 3283 |
| 23rd Meeting, 14 June 2006 | Item in private |
| 25th Meeting, 21 June 2006 | Item in private |
| 27th Meeting, 28 June 2006 | Item in private |
| Stage 1 Report - 10th Report, 2006 (SP Paper 621) - includes reports from Finance Committee and Subordinate Legislation Committee to Justice 1 Committee | Volume 1 and Volume 2 |
| Subordinate Legislation Committee | |
| 15th Meeting, 9 May 2006 | Col 1765 |
| 17th Meeting, 23 May 2006 | Col 1817 |
| Consideration by the Parliament | |
| Stage 1 Debate, 14 September 2006 | Cols 27567-27608 |
| Pre-Stage 2 | |
| Justice 1 Committee | |
| 34th Meeting, 27 September 2006 | Col 3859 |
| Stage 2 | |
| Justice 1 Committee | |
| 36th Meeting, 4 October 2006 | Col 3869 |
| 40th Meeting, 8 November 2006 | Col 3929 |
| 43rd Meeting, 15 November 2006 | Col 3981 |
| 44th Meeting, 22 November 2006 | Col 4029 |
| Post Stage 2 | |
|---|---|
| Subordinate Legislation Committee | |
| 1st Meeting, 9 January 2007 | Col 2217 |
| 2nd Report, 2007 (SP Paper 721) | Report on the Bill as amended at Stage 2 |
| Stage 3 | |
| Consideration by the Parliament | |
| Stage 3 Debate, 18 January 2007 | Cols 31200-31253 Morning Debate |
| Bill As Passed, 18 January 2007 | Bill as passed (SP Bill 55) |
Criminal Proceedings etc (Reform) (Scotland) Act 2007