(1) In section 21 (Schedule 1 offences: power of constable to take offender into custody) of the 1995 Act, subsections (2) to (5) are repealed.
(2) In section 22 (liberation by police) of that Act—
(a) in subsection (1)—
(i) the words “arrested and” are repealed,
(ii) after the word “summarily,” there is inserted “the officer who charged the person or (if different)”,
(iii) for the words “terms of which the person undertakes to appear at a specified court at a specified time” there is substituted “the terms mentioned in subsection (1C) below”,
(b) after subsection (1) there is inserted—
“(1A) Where a person has been arrested under section 21 of this Act, the arresting officer or (if different) the officer in charge of a police station may—
(a) liberate the person upon a written undertaking, signed by him and certified by the officer, in the terms mentioned in subsection (1C) below;
(b) liberate him without any such undertaking; or
(c) refuse to liberate him.
(1B) Where a person has been apprehended under a summary warrant as mentioned in section 135(3) of this Act, the apprehending officer or (if different) the officer in charge of a police station may—
(a) liberate the person upon a written undertaking, signed by him and certified by the officer, in the terms mentioned in subsection (1C) below; or
(b) refuse to liberate him.
(1C) For the purposes of subsections (1) to (1B) above, the terms are that the person undertakes (subject to any modification made to those terms under subsection (1F)(b) below)—
(a) to appear at a specified court on a specified day at a specified time; and
(b) in addition, to comply with any conditions imposed under subsection (1D) below.
(1D) The conditions which may be imposed under this subsection are—
(a) conditions in the same terms as the standard conditions mentioned in section 24(5)(b), (c) and (ca) of this Act;
(b) such further conditions as the officer who is certifying the undertaking considers are necessary to secure that the conditions referred to in paragraph (a) above are observed.
(1E) For the imposition of conditions under subsection (1D)(b) above, the authority of an officer of a rank no lower than inspector is required.
(1F) The procurator fiscal may by notice effected in the same manner as citation under section 141 of this Act—
(a) rescind an undertaking given under subsection (1) or (1A) above (whether or not the person is to be prosecuted in connection with the matters to which the undertaking relates);
(b) in relation to an undertaking given under this section—
(i) revise the court, day or time specified under subsection (1C)(a) above;
(ii) revoke or relax any conditions imposed under subsection (1D) above.
(1G) An undertaking given under this section—
(a) if rescinded under subsection (1F)(a) above, expires at the end of the day on which the notice is sent;
(b) otherwise—
(i) subject to sub-paragraph (ii) below, expires at the end of the day on which the person who gave the undertaking is required to appear at court in accordance with the undertaking;
(ii) if that person breaches the undertaking by reason of failing to appear at court, and a warrant is granted in relation to the breach, expires, so far as relating to conditions, at the end of the day on which the person is brought before the court in pursuance of the warrant.
(1H) For the purpose of any proceedings in relation to an offence under this section, an undertaking whose terms are modified under subsection (1F)(b) above shall be regarded as if given in the terms as so modified.”,
(c) in subsection (2)—
(i) for the words “subsection (1) above” there is substituted “this section”,
(ii) in paragraph (b)(ii), for the word “3” there is substituted “12”,
(d) in subsection (3)—
(i) for the words “the officer in charge” there is substituted “an officer”,
(ii) for the words “subsection (1)(c) above” there is substituted “this section”,
(iii) for the word “tried” there is substituted “heard”,
(e) after subsection (4) there is inserted—
“(4A) In any proceedings relating to an offence under this section, the fact that (as the case may be) a person—
(a) breached an undertaking given by him under this section by reason of failing to appear at court in accordance with the undertaking; or
(b) was subject to a particular condition imposed under subsection (1D) above,
shall, unless challenged by preliminary objection before the person’s plea is recorded, be held as admitted.”,
(f) in subsection (5)—
(i) for the word “section,” there is substituted “section—
(a) a document purporting to be a notice or copy of a notice effected under subsection (1F) above shall be sufficient evidence of the terms of the notice;
(b)”,
(ii) for the words “subsection (1)(a) above” there is substituted “this section”,
(iii) the words “by the arrested person” are repealed,
(g) after subsection (5) there is inserted—
“(5A) Regulations under subsection (1E)(a) above shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.”.
(3) In section 135 (warrants of apprehension and search) of that Act, in subsection (3), after the word “practicable” there is inserted “(if not liberated under section 22(1B)(a) of this Act)”.
In section 141 (manner of citation) of the 1995 Act—
(a) for subsection (1) there is substituted—
“(1) The citation of the accused or a witness in a summary prosecution to any ordinary sitting of the court or to any special diet fixed by the court or to any adjourned sitting or diet shall be effected by an officer of law or other person—
(a) delivering the citation to him personally; or
(b) leaving it for him—
(i) at his dwelling-house or place of business with a resident or (as the case may be) employee there; or
(ii) where he has no known dwelling-house or place of business, at any other place in which he may be resident at the time.”,
(b) in subsection (3)(a), after the word “service” there is inserted “or by ordinary post”,
(c) after subsection (3) there is inserted—
“(3A) Subject to subsection (4) below and without prejudice to the effect of any other manner of citation, the citation of the accused or a witness to a sitting or diet or adjourned sitting or diet as mentioned in subsection (1) above shall also be effective if an electronic citation is sent—
(a) by or on behalf of the prosecutor; and
(b) by means of electronic communication,
to the home or business email address of the person.”,
(d) in subsection (5), after the word “communication” there is inserted “(including a legible version of an electronic communication)”,
(e) after subsection (5) there is inserted—
“(5ZA) The production in court of a legible version of an electronic communication which—
(a) bears to have come from an accused’s email address; and
(b) is in such terms as to infer that the contents of an electronic citation sent as mentioned in subsection (3A) above came to the accused’s knowledge,
shall (even if not purporting to be written by or on behalf of the accused) be admissible as evidence of those facts for the purposes of subsection (4) above.”,
(f) in subsection (5A), for the words from “if” in the first place where it occurs to the end there is substituted “if—
(a) it is sent by or on behalf of the accused’s solicitor by ordinary post—
(i) to the dwelling-house or place of business of the witness; or
(ii) if he has no known dwelling-house or place of business, to any other place in which he may be resident at the time; or
(b) an electronic citation is sent by or on behalf of the accused’s solicitor by means of electronic communication to the home or business email address of the witness.”,
(g) after subsection (5A) there is inserted—
“(5B) Where a witness fails to appear at a diet or sitting or adjourned diet or sitting to which he has been cited in the manner provided by this section, subsection (2) of section 156 of this Act shall not apply unless it is proved to the court that he received the citation or that its contents came to his knowledge.”,
(h) after subsection (6) there is inserted—
“(6A) When the citation of any person is effected by electronic citation under subsection (3A) above, the induciae shall be reckoned from the end of the day on which the citation was sent.”,
(i) after subsection (7) there is added—
“(7A) It shall be sufficient evidence that citation has been effected electronically under subsection (3A) or (5A)(b) above if there is produced in court a legible version of an electronic communication which—
(a) is signed by electronic signature by the person who signed the citation;
(b) includes the citation; and
(c) bears to have been sent to the home or business email address of the person being cited.
(7B) In this section, an “electronic citation” is a citation in electronic form which—
(a) is capable of being kept in legible form; and
(b) is signed by electronic signature—
(i) in the case of citation of the accused, by the prosecutor;
(ii) in the case of citation of a witness, by or on behalf of the prosecutor or the accused’s solicitor.”.
(1) In section 144 (procedure at first diet) of the 1995 Act—
(a) in paragraph (a) of subsection (2), the words from “and” to the end are repealed,
(b) after subsection (3) there is inserted—
“(3ZA) Where the prosecutor is not satisfied, in relation to a written intimation of a plea—
(a) that the intimation of the plea has been made or authorised by the accused; or
(b) that the terms of the plea are clear,
the court may continue the case to another diet.
(3ZB) The clerk of court may perform the functions of the court under—
(a) subsections (2) and (3) above in relation to a plea of not guilty;
(b) subsection (3ZA) above,
without the court being properly constituted.”.
(2) In section 145A (adjournment at first calling to allow accused to appear etc.) of that Act, after subsection (3) there is added—
“(4) The clerk of court may perform the functions of the court under subsection (1) above without the court being properly constituted.”.
In section 146 (plea of not guilty) of the 1995 Act, after subsection (3) there is inserted—
“(3ZA) Where a case is adjourned under subsection (3) above, the court shall intimate to the accused the trial diet assigned and any intermediate diet fixed.
(3ZB) When intimating a diet under subsection (3ZA) above, the court shall inform the accused that, if he fails to appear at any diet in the proceedings in respect of the case, the court might hear and dispose of the case in his absence.”.
In section 147 (prevention of delay in trials) of the 1995 Act, for subsection (2) there is substituted—
“(2) On an application made for the purpose, the sheriff may, on cause shown—
(a) extend the period mentioned in subsection (1) above; and
(b) order the accused to be detained awaiting trial,
for such period as the sheriff thinks fit.
(2A) Before determining an application under subsection (2) above, the sheriff shall give the parties an opportunity to be heard.
(2B) However, where all the parties join in the application, the sheriff may determine the application without hearing the parties and, accordingly, may dispense with any hearing previously appointed for the purpose of considering the application.”.
(1) In section 166 (previous convictions: summary proceedings) of the 1995 Act, in subsection (8)—
(a) sub-paragraph (i) of paragraph (b), and
(b) the word “or” immediately following that sub-paragraph,
are repealed.
(2) After that section there is inserted—
Where a person is convicted of an offence on summary complaint, the court may, in deciding on the disposal of the case, have regard to any convictions which—
(a) were imposed on the person between the date of the offence and the date of conviction in respect of the offence;
(b) are specified in a notice laid before the court by the prosecutor; and
(c) are—
(i) admitted by the person; or
(ii) proved by the prosecutor on evidence adduced then or at another diet.
(1) Nothing in section 166 of this Act prevents—
(a) the prosecutor leading evidence of previous convictions where it is competent to do so as evidence in support of a substantive charge;
(b) the prosecutor proceeding with a charge—
(i) which discloses a previous conviction; or
(ii) in support of which evidence of a previous conviction may competently be led,
on a complaint which includes a charge in relation to which the conviction is irrelevant; or
(c) the court trying a charge—
(i) which discloses a previous conviction; or
(ii) in support of which evidence of a previous conviction may competently be led,
together with a charge on another complaint in relation to which the conviction is irrelevant.
(2) But subsections (1)(b) and (c) above apply only if the charges are of offences which—
(a) relate to the same occasion; or
(b) are of a similar character and amount to (or form part of) a course of conduct.
(3) The reference in subsection (1)(c) above to trying a charge together with a charge on another complaint means doing so under section 152A of this Act.”.
After section 152 of the 1995 Act there is inserted—
(1) Where—
(a) two or more complaints against an accused call for trial in the same court on the same day; and
(b) they each contain one or more charges to which the accused pleads not guilty,
the prosecutor may apply to the court for those charges to be tried together at that diet despite the fact that they are not all contained in the one complaint.
(2) On an application under subsection (1) above, the court is to try those charges together if it appears to the court that it is expedient to do so.
(3) For the purposes of subsections (1) and (2) above, any other charges contained in the complaints are (without prejudice to further proceedings as respects those other charges) to be disregarded.
(4) Where charges are tried together under this section, they are to be treated (including, in particular, for the purposes of and in connection with the leading of evidence, proof and verdict) as if they were contained in one complaint.
(5) But the complaints mentioned in subsection (1)(a) above are, for the purposes of further proceedings (including as to sentence), to be treated as separate complaints.”.
(1) In section 141 (manner of citation) of the 1995 Act, in subsection (4), for the words “subsections (3) and (5) to (7) of section 150” there is substituted “sections 143(7), 150(3) and 150A(1)”.
(2) In section 145A (adjournment at first calling to allow accused to appear etc.) of that Act, in subsection (1), for the words “150(1) to (7)” there is substituted “150”.
(3) In section 150 (failure of accused to appear) of that Act—
(a) after subsection (3B) there is inserted—
“(3C) An order under subsection (3B) above—
(a) for the purpose of having a trial in absence of the accused under section 150A of this Act, may be made on the motion of the prosecutor;
(b) for any other purpose, may be made on the motion of the prosecutor or of the court’s own accord.”,
(b) subsections (5) to (7) are repealed.
(4) After section 150 of that Act there is inserted—
(1) Where the accused does not appear at a diet (apart from a diet fixed for the first calling of the case), the court—
(a) on the motion of the prosecutor or, in relation to sentencing, of its own accord; and
(b) if satisfied as to the matters specified in subsection (2) below,
may proceed to hear and dispose of the case in the absence of the accused in like manner as if the accused were present.
(2) The matters referred in subsection (1)(b) above are—
(a) that citation of the accused has been effected or the accused has received other intimation of the diet; and
(b) that it is in the interests of justice to proceed as mentioned in subsection (1) above.
(3) In subsection (1) above, the reference to proceeding to hear and dispose of the case includes, in relation to a trial diet, proceeding with the trial.
(4) Where the court is considering whether to proceed in pursuance of subsection (1) above, it shall—
(a) if satisfied that there is a solicitor with authority to act—
(i) for the purposes of representing the accused’s interests at the hearing on whether to proceed that way; and
(ii) if it proceeds that way, for the purposes of representing the accused’s further interests at the diet (including, in relation to a trial diet, presenting a defence at the trial),
allow that solicitor to act for those purposes; or
(b) if there is no such solicitor, at its own hand appoint a solicitor to act for those purposes if it considers that it is in the interests of justice to do so.
(5) It is the duty of a solicitor appointed under subsection (4)(b) above to act in the best interests of the accused.
(6) In all other respects, a solicitor so appointed has, and may be made subject to, the same obligations and has, and may be given, the same authority as if engaged by the accused; and any employment of and instructions given to counsel by the solicitor shall proceed and be treated accordingly.
(7) Where the court is satisfied that—
(a) a solicitor allowed to act under subsection (4)(a) above no longer has authority to act; or
(b) a solicitor appointed under subsection (4)(b) above is no longer able to act in the best interests of the accused,
the court may relieve that solicitor and appoint another solicitor for the purposes referred to in subsection (4) above.
(8) Subsections (4)(b) and (7) above do not apply in the case of proceedings—
(a) in respect of a sexual offence to which section 288C of this Act applies;
(b) in respect of which section 288E of this Act applies; or
(c) in which an order has been made under section 288F(2) of this Act.
(9) Reference in this section to a solicitor appointed under subsection (4)(b) above includes reference to a solicitor appointed under subsection (7) above.
(10) Where the court proceeds in pursuance of subsection (1) above, it shall not in the absence of the accused pronounce a sentence of imprisonment or detention.
(11) Nothing in this section prevents—
(a) a warrant being granted at any stage of proceedings for the apprehension of the accused;
(b) a case subsequently being adjourned (in particular, with a view to having the accused present at any proceedings).”.
(5) In section 153 (trial in presence of accused) of that Act, in subsection (1), for the words “Without prejudice to section 150 of this Act, and subject to” there is substituted “Subject to section 150A of this Act and”.
In section 150 (failure of accused to appear) of the 1995 Act—
(a) in subsection (8), in paragraph (b)(ii), for the word “3” there is substituted “12”,
(b) in subsection (9), for the words “The penalties provided for in subsection (8) above may” there is substituted “A penalty under subsection (8) above shall”,
(c) after subsection (9) there is inserted—
“(9A) The reference in subsection (9) above to a penalty being imposed in addition to another penalty means, in the case of sentences of imprisonment or detention—
(a) where the sentences are imposed at the same time (whether or not in relation to the same complaint), framing the sentences so that they have effect consecutively;
(b) where the sentences are imposed at different times, framing the sentence imposed later so that (if the earlier sentence has not been served) the later sentence has effect consecutive to the earlier sentence.
(9B) Subsection (9A)(b) above is subject to section 204A of this Act.
(9C) In any proceedings in relation to an offence under subsection (8) above, the fact that (as the case may be) an accused—
(a) failed to appear at a diet; or
(b) was given due notice of a diet,
shall, unless challenged by preliminary objection before his plea is recorded, be held as admitted.”.
For section 156 (apprehension of witness) of the 1995 Act there is substituted—
(1) In any summary proceedings, the court may, on the application of any of the parties, issue a warrant for the apprehension of a witness if subsection (2) or (3) below applies in relation to the witness.
(2) This subsection applies if the witness, having been duly cited to any diet in the proceedings, deliberately and obstructively fails to appear at the diet.
(3) This subsection applies if the court is satisfied by evidence on oath that the witness is being deliberately obstructive and is not likely to attend to give evidence at any diet in the proceedings without being compelled to do so.
(4) For the purposes of subsection (2) above, a witness who, having been duly cited to any diet, fails to appear at the diet is to be presumed, in the absence of any evidence to the contrary, to have so failed deliberately and obstructively.
(5) An application under subsection (1) above—
(a) may be made orally or in writing;
(b) if made in writing—
(i) shall be in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form; and
(ii) may be disposed of in court or in chambers after such enquiry or hearing (if any) as the court considers appropriate.
(6) A warrant issued under this section shall be in such form as may be prescribed by Act of Adjournal or as nearly as may be in such form.
(7) A warrant issued under this section in the form mentioned in subsection (6) above shall imply warrant to officers of law—
(a) to search for and apprehend the witness in respect of whom it is issued;
(b) to bring the witness before the court;
(c) in the meantime, to detain the witness in a police station, police cell or other convenient place; and
(d) so far as necessary for the execution of the warrant, to break open shut and lockfast places.
(8) It shall not be competent in summary proceedings for a court to issue a warrant for the apprehension of a witness otherwise than in accordance with this section.
(9) Section 135(3) of this Act makes provision as to bringing before the court a person apprehended under a warrant issued under this section.
(10) In this section and section 156A, “the court” means the court in which the witness is to give evidence.
(1) Where a witness is brought before the court in pursuance of a warrant issued under section 156 of this Act, the court shall, after giving the parties and the witness an opportunity to be heard, make an order—
(a) detaining the witness until the conclusion of the diet at which the witness is to give evidence;
(b) releasing the witness on bail; or
(c) liberating the witness.
(2) The court may make an order under subsection (1)(a) or (b) above only if it is satisfied that—
(a) the order is necessary with a view to securing that the witness appears at the diet at which the witness is to give evidence; and
(b) it is appropriate in all the circumstances to make the order.
(3) Whenever the court makes an order under subsection (1) above, it shall state the reasons for the terms of the order.
(4) Subsection (1) above is without prejudice to any power of the court to—
(a) make a finding of contempt of court in respect of any failure of a witness to appear at a diet to which he has been duly cited; and
(b) dispose of the case accordingly.