Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Criminal Justice (Scotland) Act 2003

Type Act of the Scottish Parliament

Publication 2003-03-26

Last updated 2026-03-19

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(a) sentence which has been imposed under paragraph (a) of subsection (4); or

(b) order which has been made under paragraph (b) of that subsection,

in relation to a failure to comply with a requirement of the drug treatment and testing order.

(9) If a community payback order is revoked under section 227ZC(7)(b) of the 1995 Act, the court (whether or not a drugs court) must, in dealing with the offender by virtue of that section, take into account any sentence which has been imposed under paragraph (a) of subsection (4) of this section in relation to a failure to comply with the community payback order.

(10) In this section—

“community payback order” means an order imposed under section 227A of the 1995 Act;

“drug treatment and testing order”has the meaning given by section 234B(2) of the 1995 Act (power to make drug treatment and testing order);

“level 1 unpaid work or other activity requirement” has the meaning given in section 227I(5) of the 1995 Act;

“review hearing”is to be construed in accordance with section 234F(1)(b) of that Act (periodic review of drug treatment and testing order).

(11) In the 1995 Act—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) in section 234D(1)(b) (explanation to be given to offender of possible consequences of failure to comply with drug treatment and testing order), after the word “Act” there is inserted “ or 42(4) of the Criminal Justice (Scotland) Act 2003 (asp 7) (powers of drugs court) ”; and

(d) in section 234H (disposal on revocation of drug treatment and testing order), at the end there is added—

(4) This section is subject to section 42(8) of the Criminal Justice (Scotland) Act 2003 (asp 7) (powers of drugs court).

Part 6 — Non-custodial punishments

Restriction of liberty orders

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(1) The 1995 Act is amended as follows.

(2) In section 245A(5)(a) (duty of clerk of court by which restriction of liberty order is made)—

(a) the existing words “to any person who is to be responsible for monitoring the offender’s compliance with the order” become sub-paragraph (i); and

(b) after that sub-paragraph there is inserted the word “ and ” and the following sub-paragraph—

(ii) if the offender resides (or is to reside) in a place outwith the jurisdiction of the court making the order, to the clerk of a court within whose jurisdiction that place is;

(3) In section 245E (variation of restriction of liberty order)—

(a) in subsection (1)—

(i) after the word “may” there are inserted the words “ except in a case to which paragraph (b) below applies, ” and those words together with the existing words “apply to the court which made the order” become paragraph (a); and

(ii) after that paragraph there is inserted the word “ or ” and the following paragraph—

(b) where a copy of the order was, under section 245A(5)(a)(ii) of this Act or subsection (7)(a) below, sent to the clerk of a different court, to that different court (or, if there has been more than one such sending, the different court to which such a copy has most recently been so sent),

; and

(b) at the end there is added—

(5) Where a reason for an application by the offender under subsection (1) above is that he proposes to reside in a place outwith the jurisdiction of the court to which that application is made, and the court is satisfied that suitable arrangements can be made, in the district where that place is, for monitoring his compliance with the order it may— (a) vary the order to permit or make practicable such arrangements; and (b) where the change in residence necessitates or makes desirable a change in who is designated for the purpose of such monitoring, vary the order accordingly. (6) Before varying a restriction of liberty order for the reason mentioned in subsection (5) above, the court shall— (a) if the order will require the offender to remain in a specified place or in specified places, obtain and consider information about that place, or those places, including information as to the attitude of persons likely to be affected by any enforced presence there of the offender; and (b) satisfy itself that his compliance with that requirement can be monitored by the means of monitoring specified, or which it intends to specify, in the order. (7) Where a restriction of liberty order is varied as is mentioned in subsection (5) above, the clerk of the court shall send a copy of the order as so varied to— (a) the clerk of a court within whose jurisdiction the place of proposed residence is; (b) the person who, immediately before the order was varied, was responsible for monitoring the person’s compliance with it; and (c) the person who, in consequence of the variation, is to have that responsibility. (8) If, in relation to an application made for such reason as is mentioned in subsection (5) above, the court is not satisfied as is mentioned in that subsection, it may— (a) refuse the application; or (b) revoke the order.

(4) In section 245F (breach of restriction of liberty order)—

(a) in subsection (1)—

(i) after the words “force it appears”, there is inserted “ except in a case to which paragraph (b) below applies, ” and those words together with the existing words “to the court which made the order” become paragraph (a);

(ii) after that paragraph there is inserted the word “ or ” and the following paragraph—

(b) where a copy of the order was, under section 245A(5)(a)(ii) or 245E(7)(a) of this Act, sent to the clerk of a different court, to that different court (or, if there has been more than one such sending, the different court to which such a copy has most recently been so sent),

;

(iii) after the words “order the court” there is inserted “ in question ”;

(iv) for the words “the court”, where they occur for the third time, there is substituted “ it ”; and

(v) for the words “the court”, where they occur for the fourth time, there is substituted “ that court ”;

(b) in subsection (2), for the words—

(i) “the court”, where they occur for the first time, there is substituted “ that court ”; and

(ii) “the court”, where they occur for the second time, there is substituted “ it ”; and

44

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45

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Requirement for remote monitoring in probation order

46

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Requirement for remote monitoring in drug treatment and testing order

47

(1) The 1995 Act is amended as follows.

(2) After section 234C there is inserted—

(234CA) (1) A drug treatment and testing order may include a requirement that during such period as may be specified in the requirement, being a period not exceeding twelve months, the offender comply with such restrictions as to his movements as the court thinks fit; and paragraphs (a) and (b) of subsection (2) of section 245A of this Act (with the qualification of paragraph (a) which that subsection contains) shall apply in relation to any such requirement as they apply in relation to a restriction of liberty order. (2) The clerk of the court shall cause a copy of a drug treatment and testing order which includes such a requirement to be sent to the person who is to be responsible for monitoring the offender’s compliance with the requirement. (3) If, within the period last specified by virtue of subsection (1) above or (6)(d) below, it appears to the person so responsible that the offender has failed to comply with the requirement the person shall so inform the supervising officer appointed by virtue of section 234C(6) of this Act, who shall report the matter to the court. (4) Section 245H shall apply in relation to proceedings under section 234G of this Act as respects a drug treatment and testing order which includes such a requirement as it applies in relation to proceedings under section 245F of this Act. (5) Sections 245A(6) and (8) to (11), 245B and 245C of this Act shall apply in relation to the imposition of, or as the case may be compliance with, requirements included by virtue of subsection (1) above in a drug treatment and testing order as those sections apply in relation to the making of, or as the case may be compliance with, a restriction of liberty order. (6) In relation to a drug testing order which includes such a requirement, section 234E of this Act shall apply with the following modifications— (a) the persons who may make an application under subsection (1) of that section shall include the person responsible for monitoring the offender’s compliance with the requirement, but only in so far as the application relates to the requirement; (b) the reference in subsection (2) of that section to the supervising officer shall be construed as a reference to either that officer or the person so responsible; (c) where an application is made under subsection (1) of that section and relates to the requirement, the persons to be heard under subsection (3) of that section shall include the person so responsible; (d) the ways of varying the order which are mentioned in subsection (3)(a) of that section shall include increasing or decreasing the period specified by virtue of subsection (1) above (or last specified by virtue of this paragraph) but not so as to increase that period above the maximum mentioned in subsection (1) above; and (e) the reference in subsection (5) of that section— (i) to the supervising officer shall be construed as a reference to either that officer or the person so responsible; and (ii) to sections 234B(5) and 234D(1) shall be construed as including a reference to section 245A(6) and (11). (7) Where under section 234E or 234G(2)(b) of this Act the court varies such a requirement, the clerk of court shall cause a copy of the amended drug treatment and testing order to be sent— (a) to the person responsible for monitoring the offender’s compliance with the requirement; and (b) where the variation comprises a change in who is designated for the purposes of such monitoring, to the person who, immediately before the order was varied, was so responsible.

(3) In section 234E (amendment of drug treatment and testing order), at the end there is added—

(7) This section is subject to section 234CA(6) of this Act.

(4) In section 234G (breach of drug treatment and testing order)—

(a) in subsection (2)(b), at the end there is added “ so however that any extension of the period of a requirement imposed by virtue of section 234CA of this Act shall not increase that period above the maximum mentioned in subsection (1) of that section ”; and

(b) after subsection (2) there is inserted—

(2A) Subsections (6) and (11) of section 245A of this Act apply to the variation, under paragraph (b) of subsection (2) above, of a requirement imposed as is mentioned in that paragraph as they apply to the making of a restriction of liberty order.

Breach of certain orders: adjourning hearing and remanding in custody etc.

48

After section 245I of the 1995 Act there is inserted—

(245J) (1) Where a probationer or offender appears before the court in respect of his apparent failure to comply with a requirement of, as the case may be, a probation order, drug treatment and testing order, supervised attendance order, community service order or restriction of liberty order the court may, for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with him, adjourn the hearing. (2) Where, under subsection (1) above, the court adjourns a hearing it shall remand the probationer or offender in custody or on bail or ordain him to appear at the adjourned hearing. (3) A court shall not so adjourn a hearing for any single period exceeding four weeks or, on cause shown, eight weeks. (4) A probationer or offender remanded under this section may appeal against the refusal of bail, or against the conditions imposed, within 24 hours of his remand. (5) Any such appeal shall be by note of appeal presented to the High Court, who, either in court or in chambers, may after hearing the prosecutor and the appellant— (a) review the order appealed against and either grant bail on such conditions as it thinks fit or ordain the appellant to appear at the adjourned hearing; or (b) confirm the order.

Power of arrest where breach of non-harassment order

49

(1) In section 234A (non-harassment orders) of the 1995 Act—

(a) in subsection (4), the words “found to be” are repealed;

(b) after that subsection there is inserted—

(4A) A constable may arrest without warrant any person he reasonably believes is committing or has committed an offence under subsection (4) above. (4B) Subsection (4A) above is without prejudice to any power of arrest conferred by law apart from that subsection.

(2) In section 9 (breach of non-harassment order) of the Protection from Harassment Act 1997 (c. 40)—

(a) in subsection (1), the words “found to be” are repealed;

(b) after subsection (2) there is inserted—

(3) A constable may arrest without warrant any person he reasonably believes is committing or has committed an offence under subsection (1). (4) Subsection (3) is without prejudice to any power of arrest conferred by law apart from that subsection.

Amendments in relation to certain non-custodial sentences

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(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In section 245A (restriction of liberty orders) of that Act, in subsection (1)—

(a) after “offence” in the first place where it appears there is inserted “ punishable by imprisonment ”;

(b) the words from “, if” to “disposal,” are repealed;

(c) after “may” there is inserted “ , instead of imposing on him a sentence of, or including, imprisonment or any other form of detention, ”.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part 7 — Children

Physical punishment of children

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Prohibition of publication of proceedings at children’s hearing etc.

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In the Children (Scotland) Act 1995 (c. 36)—

(a) in section 44 (prohibition of publication of proceedings at children’s hearing), in subsection (1)—

(i) after the word “publish” there is inserted “ any matter in respect of a case about which the Principal Reporter has from any source received information or ”; and

(ii) in paragraph (a), for the words “any child concerned in the” there is substituted “ the child concerned in, or any other child connected (in any way) with, the case, ”; and

(b) in section 93 (interpretation of Part II), in subsection (2)—

(i) in paragraph (a), after the word “Part” there is inserted “ and section 44 ”; and

(ii) in paragraph (b), for the words “Chapters 2 and” there is substituted “ Chapter 2 (except section 44) and Chapter ”.

Provision by Principal Reporter of information to victims

53

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Part 8 — Evidential, jurisdictional and procedural matters

Evidential matters

Certificates relating to physical data: sufficiency of evidence

54

In section 284(2) of the 1995 Act (no entitlement to challenge sufficiency of evidence in certificate relating to certain physical data), for the words “such other party shall not be entitled to challenge the sufficiency of the evidence contained within the certificate” there is substituted “ , if that other party serves on the first party, not more than seven days after the date of service of the copy on him, a notice that he does not accept the evidence contained in the certificate, subsection (1) above shall not apply in relation to that evidence. ”.

Taking samples by swabbing

55

(1) The 1995 Act is amended as follows.

(2) In section 18 (prints, samples etc. in criminal investigations)—

(a) in subsection (6), paragraph (d) is repealed; and

(b) after that subsection there is inserted—

(6A) A constable, or at a constable’s direction a police custody and security officer, may take from the inside of the person’s mouth, by means of swabbing, a sample of saliva or other material.

(3) In each of sections 19(2) (prints, samples etc. in criminal investigations: supplementary provisions) and 19A(2)(samples etc. from persons convicted of sexual and violent offences)—

(a) the word “and” which immediately follows paragraph (a) is repealed;

(b) in paragraph (b), for the word “(d)” there is substituted “ (c) ”; and

(c) take, or direct a police custody and security officer to take, from the person any sample mentioned in subsection (6A) of that section by the means specified in that subsection.

(4) In section 19B (power of constable in obtaining relevant physical data etc.), the existing provisions become subsection (1); and after that subsection there is added—

(2) A constable may, with the authority of an officer of a rank no lower than inspector, use reasonable force in (himself) exercising any power conferred by section 18(6A), 19(2)(c) or 19A(2)(c) of this Act.

Retaining sample or relevant physical data where given voluntarily

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(1) This section applies only to a person other than is mentioned in subsection (1) of section 18 of the 1995 Act (application of that section) and does not apply where a sample is, or relevant physical data are, taken from or provided by a person—

(a) by virtue of any power of search;

(b) by virtue of any power to take possession of evidence where there is imminent danger of its being lost or destroyed; or

(2) In the circumstances mentioned in subsection (3), a sample or relevant physical data taken from and with the consent of the person (or provided by and with the consent of the person) in connection with the investigation of an offence , or information derived from that sample may be held and used—

(a) for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, ...

(b) for the identification of a deceased person or a person from whom the sample or relevant physical data came.

(d) for the purposes of a terrorist investigation

(3) The circumstances are that the person consents in writing to the sample, data or information derived from a sample being so held and used; but in giving such consent the person may elect to confine it to consent to holding and using in connection with the investigation and prosecution of the offence in connection with which the sample was, or data were, taken or provided.

(4) The person may at any time withdraw such written consent by—

(a) giving notice in writing of such withdrawal to the chief constable of the Police Service of Scotland; or

(b) attending at any police station ... and giving such notice to—

(i) any constable ...; or

(ii) any person authorised to receive it by the officer in charge of the station,

and the chief constable, constable or as the case may be person so authorised shall, on receipt of that notice, provide the person withdrawing consent with a written acknowledgment of receipt.

(5) The withdrawal takes effect when notice given under subsection (4) is received by the person to whom it falls to provide an acknowledgment under that subsection; and subject to subsection (6)—

(a) the sample, with all information derived from it, is;

(b) the data, ..., are,

to be destroyed as soon as possible after such receipt.

(6) Subsections (4) and (5) are without prejudice to—

(a) the use of the sample, data or information derived from the sample in evidence—

(i) unless an election was made under subsection (3), in any prosecution; and

(ii) if such an election was so made, in the prosecution of the offence in connection with which the sample was, or data were, taken or provided,

where and in so far as that evidence relates to, or to circumstances connected with or arising out of, a check such as is mentioned in subsection (7);

(b) the admissibility of any evidence as to—

(i) the taking or provision of the sample or data; or

(ii) the giving or withdrawal of consent.

(7) The check is one which—

(a) was against any other sample or relevant physical data, or against any information derived from any other sample ...; and

(b) took place before the withdrawal took effect.

(7A) In subsection (2)—

(a) the reference to crime includes a reference to—

(i) conduct which constitutes a criminal offence or two or more criminal offences (whether under the law of a part of the United Kingdom or a country or territory outside the United Kingdom), or

(ii) conduct which is, or corresponds to, conduct which, if it all took place in any one part of the United Kingdom would constitute a criminal offence or two or more criminal offences,

(b) the reference to an investigation includes a reference to an investigation outside the United Kingdom of a crime or suspected crime, and

(c) the reference to a prosecution includes a reference to a prosecution brought in respect of a crime in a country or territory outside the United Kingdom.

(8) In this section—

“sample”means a sample such as is mentioned in section 18(6) or (6A) of the 1995 Act, being one taken as so mentioned; ...

“relevant physical data”has the same meaning as it has for the purposes of section 18 of that Act ; and

“terrorist investigation” has the meaning given by section 32 of the Terrorism Act 2000.

Convictions in other member States of the European Union

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(1) The 1995 Act is amended as follows.

(2) In section 101(8) (manner of proving previous conviction in solemn proceedings)—

(a) after the words “section 285” there is inserted “ , or as the case may be 286A, ”; and

(b) for the words “said section” there is substituted “ section in question ”.

(3) In section 286 (proof of previous conviction in support of substantive charge), at the end there is added—

(3) The reference in subsection (1)(a) above to “the clerk of court having custody of the record containing the conviction” includes, in relation to a previous conviction by a court in another member State of the European Union, a reference to any officer of that court or of that State having such custody.

(4) After section 286 there is inserted—

(286A) (1) A previous conviction by a court in another member State of the European Union may be proved against any person in any criminal proceedings by the production of evidence of the conviction and by showing that his fingerprints and those of the person convicted are the fingerprints of the same person. (2) A certificate— (a) bearing— (i) to have been sealed with the official seal of a Minister of the State in question; and (ii) to contain particulars relating to a conviction extracted from the criminal records of that State; and (b) including copies of fingerprints and certifying that those copies— (i) are of fingerprints appearing from those records to have been taken from the person convicted on the occasion of the conviction, or on the occasion of his last conviction; and (ii) would be admissible in evidence in criminal proceedings in that State as a record of the skin of that person’s fingers, shall be sufficient evidence of the conviction or, as the case may be, of the person’s last conviction and of all preceding convictions and that the copies of the fingerprints included in the certificate are copies of the fingerprints of the person convicted. (3) A conviction bearing to have been— (a) extracted from the criminal records of the State in question; and (b) issued by an officer of that State whose duties include the issuing of such extracts, shall be received in evidence without being sworn to by witnesses. (4) Subsection (9) of section 285 of this Act applies in relation to this section as it does in relation to that section.

(5) In section 307 (interpretation)—

(a) in subsection (1), in the definition of “extract conviction” and “extract of previous conviction”, at the end there is added “ and also include a conviction extracted and issued as mentioned in section 286A(3)(a) and (b) of this Act ”; and

(b) in subsection (5), at the end there is added

except— (a) where the context otherwise requires; and (b) in sections 69(2) and 166, where such a reference includes a reference to a previous conviction, by a court in another member State of the European Union, of an act punishable under the law in force in that State (an act so punishable being taken to constitute an offence under that law however described in that law)

Jurisdictional matters

Transfer of sheriff court proceedings

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(1) In section 83 of the 1995 Act (transfer of sheriff court solemn proceedings)—

(a) in subsection (1), for the words “, at any time before the commencement of his trial, apply to the sheriff to adjourn the trial and transfer it to a sitting of a sheriff court, appointed as mentioned in section 66(1) of this Act, in any other district in that sheriffdom” there is substituted “ apply to the sheriff for an order for the transfer of the proceedings to a sheriff court in another district in that sheriffdom (that court being taken to be, by virtue of any such order, appointed as mentioned in section 66(1) of this Act) and for adjournment to a sitting of that court ”;

(b) after subsection (1) there is inserted—

(1A) Where— (a) an accused person has been cited to attend a sitting of the sheriff court; or (b) paragraph (a) above does not apply but it is competent so to cite an accused person, and the prosecutor is informed by the sheriff clerk that, because of exceptional circumstances which could not reasonably have been foreseen, it is not practicable for that court (in subsection (2A)(b)(i) below referred to as the “relevant court”) or any other sheriff court in that sheriffdom to proceed with the case, the prosecutor— (i) may, where paragraph (b) above applies, so cite the accused; and (ii) shall, where paragraph (a) above applies or the accused is so cited by virtue of paragraph (i) above, as soon as practicable apply to the sheriff principal for an order for the transfer of the proceedings to a sheriff court in another sheriffdom (that court being taken to be, by virtue of any such order, appointed as mentioned in section 66(1) of this Act) and for adjournment to a sitting of that court.

;

(c) in subsection (2), for the words “adjourn the trial and make an order for the transfer of the trial as mentioned in subsection (1) above” there is substituted “ make such order as is mentioned in that subsection ”;

(d) after subsection (2) there is inserted—

(2A) On an application under subsection (1A) above the sheriff principal may make the order sought— (a) provided that the sheriff principal of the other sheriffdom consents; but (b) in a case where the trial (or part of the trial) would be transferred, shall do so only— (i) if the sheriff of the relevant court, after giving the accused or his counsel an opportunity to be heard, consents to the transfer; or (ii) on the joint application of the parties. (2B) On the application of the prosecutor, a sheriff principal who has made an order under subsection (2A) above may, if the sheriff principal of the other sheriffdom mentioned in that subsection consents— (a) revoke; or (ii) vary so as to restrict the effect of, that order.

; and

(e) in subsection (3), for the words from “the trial has been adjourned” to the end there is substituted “ there has then been an order under subsection (2) or (2A) above, the warrant shall, subject to subsection (2B) above, have effect subject to the adjournment provided for in the order and as if the sitting is a sitting of the court to which the proceedings have been transferred ”.

(2) After section 137 of that Act there is inserted—

(137A) (1) Where an accused person has been cited to attend a diet of the sheriff court the prosecutor may apply to the sheriff for an order for the transfer of the proceedings to a sheriff court in any other district in that sheriffdom and for adjournment to a diet of that court. (2) On an application under subsection (1) above the sheriff may make such order as is mentioned in that subsection. (137B) (1) Where— (a) an accused person has been cited to attend a diet of the sheriff court; or (b) paragraph (a) does not apply but it is competent so to cite an accused person, and the prosecutor is informed by the sheriff clerk that, because of exceptional circumstances which could not reasonably have been foreseen, it is not practicable for that court or any other sheriff court in that sheriffdom to proceed with the case, the prosecutor— (i) may, where paragraph (b) above applies, so cite the accused; and (ii) shall, where paragraph (a) above applies or the accused is so cited by virtue of paragraph (i) above, as soon as practicable apply to the sheriff principal for an order for the transfer of the proceedings to a sheriff court in another sheriffdom and for adjournment to a diet of that court. (2) On an application under subsection (1) above the sheriff principal may make the order sought, provided that the sheriff principal of the other sheriffdom consents. (3) On the application of the prosecutor, a sheriff principal who has made an order under subsection (2) above may, if the sheriff principal of the other sheriffdom mentioned in that subsection consents— (a) revoke; or (b) vary so as to restrict the effect of, that order.

Competence of justice’s actings outwith jurisdiction

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After section 9 of the 1995 Act there is inserted—

(9A) It is competent for a justice, even if not present within his jurisdiction, to sign any warrant, judgment, interlocutor or other document relating to proceedings within that jurisdiction provided that when he does so he is present within Scotland.

Procedural matters

Unified citation provisions

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(1) In the 1995 Act, in—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) section 234G (breach of drug treatment testing order), after subsection (1) there is inserted;

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g) section 245E (variation of restriction of liberty order), after subsection (3) there is inserted; and

(h) section 245F (breach of restriction of liberty order), after subsection (1) there is inserted,

in each case as a subsection appropriately numbered, the following—

The unified citation provisions apply in relation to a citation under this section as they apply in relation to a citation under section 216(3)(a) of this Act.

(2) In section 307(1) of that Act (interpretation), at the appropriate place there is inserted—

“the unified citation provisions”means section 216(5) and (6)(a) and (b) of this Act;

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) In section 15 of the 1993 Act (variation of supervised release order etc.), after subsection (5) there is inserted—

(5A) The unified citation provisions (as defined by section 307(1) of the Criminal Procedure (Scotland) Act 1995 (c. 46)) apply in relation to a citation under subsection (5) above as they apply in relation to a citation under section 216(3)(a) of that Act.

(6) In section 18 of that Act (breach of supervised release order), after subsection (1) there is inserted—

(1A) The unified citation provisions (as defined by section 307(1) of the Criminal Procedure (Scotland) Act 1995 (c. 46)) apply in relation to a citation under subsection (1)(b) above as they apply in relation to a citation under section 216(3)(a) of that Act.

Citation other than by service of indictment or complaint

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(1) In section 66 of the 1995 Act (service and lodging of indictment etc.)—

(a) for subsection (4) there is substituted—

(4) The accused may be cited either— (a) by being served with a copy of the indictment and of the list of the names and addresses of the witnesses to be adduced by the prosecution; or (b) by a constable affixing to the door of the accused’s dwelling-house or place of business a notice in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form— (i) specifying the date on which it was so affixed; (ii) informing the accused that he may collect a copy of the indictment and of such list as is mentioned in paragraph (a) above from a police station specified in the notice; and (iii) calling upon him to appear and answer to the indictment at such diet as shall be so specified. (4A) Where a date is specified by virtue of sub-paragraph (i) of subsection (4)(b) above, that date shall be deemed the date on which the indictment is served; and the copy of the indictment referred to in sub-paragraph (ii) of that subsection shall, for the purposes of subsections (12) and (13) below be deemed the service copy. (4B) Paragraphs (a) and (b) of subsection (6) below shall apply for the purpose of specifying a diet by virtue of subsection (4)(b)(iii) above as they apply for the purpose of specifying a diet in any notice under subsection (6).

;

(b) in subsection (6)—

(i) for the words “Except where the indictment is served” there is substituted “ If the accused is cited by being served with a copy of the indictment, then except where such service is ”; and

(ii) in paragraph (b), the words “and notice” are repealed;

(d) in subsection (8), after the word “indictment” there is inserted “ , to citation under subsection (4)(b) above ”;

(e) in subsection (11), after the word—

(i) “indictment” there is inserted “ , or who executed a citation under subsection (4)(b) above, ”; and

(ii) “service” there is inserted “ or execution ”;

(f) in subsection (13), the words “required to be” are repealed; and

(g) in subsection (14)—

(i) for the word “of”, in the second place where it occurs, there is substituted “ or ”; and

(ii) for the words “requiring to be” there is substituted “ so ”.

(2) In section 140(2) of that Act (form of citation in summary proceedings), at the beginning there is inserted “ Without prejudice to section 141(2A) of this Act, ”.

(3) In section 141 of that Act (manner of citation in such proceedings)—

(a) after subsection (2) there is inserted—

(2A) Notwithstanding subsection (1) above and section 140(2) of this Act, citation of the accused may also be effected by an officer of law affixing to the door of the accused’s dwelling-house or place of business a notice in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form— (a) specifying the date on which it was so affixed; (b) informing the accused that he may collect a copy of the complaint from a police station specified in the notice; and (c) calling upon him to appear and answer the complaint at such diet as shall be so specified. (2B) Where the citation of the accused is effected by notice under subsection (2A) above, the induciae shall be reckoned from the date specified by virtue of paragraph (a) of that subsection.

;

(b) in subsection (3), after the word “below” there is inserted “ and without prejudice to the effect of any other manner of citation ”;

(c) in subsection (5), after the word “subsection”, in the first place where it occurs, there is inserted “ (2A) or ”; and

(d) in subsection (7)—

(i) the existing words from “a citation” to the end shall be paragraph (a); and

(ii) after that paragraph there shall be added the word “ ; or ” and the following paragraph—

(b) citation has been effected by notice under subsection (2A) above, if there is produced in court a written execution, in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form, signed by the officer of law who affixed the notice.

Leave to appeal: extension of time limit for application under section 107(4) of 1995 Act

62

In section 107 of the 1995 Act (leave to appeal)—

(a) in subsection (3)—

(i) after the words “subsection (4) below” there is inserted “ (and if that period is extended under subsection (4A) below before the period being extended expires, until the expiry of the period as so extended) ”; and

(ii) for the words “that subsection” there is substituted “ subsection (4) ”; and

(b) after subsection (4) there is inserted—

(4A) The High Court may, on cause shown, extend the period of 14 days mentioned in subsection (4) above, or that period as extended under this subsection, whether or not the period to be extended has expired (and if that period of 14 days has expired, whether or not it expired before section 62 of the Criminal Justice (Scotland) Act 2003 (asp 7) came into force).

Adjournment at first diet in summary proceedings

63

(1) The 1995 Act is amended as follows.

(2) In section 144 (procedure at first diet), in subsection (9) after “145” there is inserted “ or 145A ”.

(3) In section 145 (adjournment for inquiry at first calling), in subsection (1) for the words from the beginning to “Act,” there is substituted “ Where the accused is present ”.

(4) After section 145 there is inserted—

(145A) (1) Without prejudice to section 150(1) to (7) of this Act, where the accused is not present at the first calling of the case in a summary prosecution, the court may (whether or not the prosecutor is able to provide evidence that the accused has been duly cited) adjourn the case under this section for such period as it considers appropriate; and subject to subsections (2) and (3) below, the court may from time to time so adjourn the case. (2) An adjournment under this section shall be— (a) for the purposes of allowing— (i) the accused to appear in answer to the complaint; or (ii) time for inquiry into the case; or (b) for any other cause the court considers reasonable. (3) No one period of adjournment under this section shall exceed 28 days.

Review hearing of drug treatment and testing order

64

In section 234F of the 1995 Act (periodic review of drug treatment and testing order), after subsection (1) there is inserted—

(1A) A review hearing may be held whether or not the prosecutor elects to appear.

Transcript of record

65

In section 94 of the 1995 Act (transcripts of record and documentary productions)—

(a) in subsection (2)—

(i) at the end of paragraph (a) there is added “ or, subject to subsection (2B) below, the prosecutor ”; and

(ii) in paragraph (b), after the word “person” there is inserted “ , not being a person convicted at the trial, ”; and

(b) after that subsection there is inserted—

(2A) If— (a) on the written application of a person convicted at the trial and granted leave to appeal; and (b) on cause shown, a judge of the High Court so orders, the Clerk of Justiciary shall direct, on payment of such charges as are mentioned in paragraph (b) of subsection (2) above, that such a transcript be made and sent to that person. (2B) Where, as respects any person convicted at the trial, the Crown Agent has received intimation under section 107(10) of this Act, the prosecutor shall not be entitled to make a request under subsection (2)(a) above; but if, on the written application of the prosecutor and on cause shown, a judge of the High Court so orders, the Clerk of Justiciary shall direct that such a transcript be made and sent to the prosecutor. (2C) Any application under subsection (2A) above shall— (a) be made within 14 days after the date on which leave to appeal was granted or within such longer period after that date as a judge of the High Court may, on written application and on cause shown, allow; and (b) be intimated forthwith by the applicant to the prosecutor. (2D) The prosecutor may, within 7 days after receiving intimation under subsection (2C)(b) above, make written representations to the court as respects the application under subsection (2A) above (the application being determined without a hearing). (2E) Any application under subsection (2B) above shall— (a) be made within 14 days after the receipt of intimation mentioned in that subsection or within such longer period after that receipt as a judge of the High Court may, on written application and on cause shown, allow; and (b) be intimated forthwith by the prosecutor to the person granted leave to appeal. (2F) The person granted leave to appeal may, within 7 days after receiving intimation under subsection (2E)(b) above, make written representations to the court as respects the application under subsection (2B) above (the application being determined without a hearing).

66

(1) The 1995 Act is amended as follows.

(2) In section 103 (appeal sittings)—

(a) after subsection (6) there is inserted—

(6A) Where a judge acting under subsection (5)(c) above grants an application by an appellant to exercise that power in his favour, the prosecutor shall be entitled to have the application determined by the High Court.

; and

(b) in subsection (7) for the words “and (6)” there is substituted “ , (6) and (6A) ”.

(3) In section 105 (appeal against refusal of application), after subsection (4), there is inserted—

(4A) An application by a convicted person for a determination by the High Court of a decision of a judge acting under section 103(5)(c) of this Act to refuse to admit him to bail shall be intimated by him immediately and in writing to the Crown Agent.

(4) After section 105 there is inserted—

(105A) (1) Where the prosecutor desires a determination by the High Court as mentioned in subsection (6A) of section 103 of this Act, he shall apply to the judge immediately after the power in subsection (5)(c) of that section is exercised in favour of the appellant. (2) Where a judge acting under section 103(5)(c) of this Act has exercised that power in favour of the appellant but the prosecutor has made an application under subsection (1) above— (a) the appellant shall not be liberated until the determination by the High Court; and (b) that application by the prosecutor shall be heard not more than seven days after the making of the application, and the Clerk of the Justiciary shall forward to the appellant the prescribed form for completion and return forthwith if he desires to be present at the hearing. (3) At a hearing and determination as mentioned in subsection (2) above, if the appellant— (a) is not legally represented, he may be present; (b) is legally represented, he shall not be entitled to be present without leave of the court. (4) If the appellant completes and returns the form mentioned in subsection (2) above indicating a desire to be present at the hearing, the form shall be deemed to be an application by the appellant for leave to be so present, and the Clerk of Justiciary, on receiving the form, shall take the necessary steps for placing the application before the court. (5) If the application to be present is refused by the court, the Clerk of Justiciary shall notify the appellant; and if the application is granted, he shall notify the appellant and the Governor of the prison where the applicant is in custody and the Scottish Ministers. (6) For the purposes of constituting a Court of Appeal, the judge who exercised the power in section 103(5)(c) of this Act in favour of the appellant may sit as a member of the court, and take part in determining the application of the prosecutor.

(5) In section 112 (admission of appellant to bail)—

(a) in subsection (1) for “subsection (2)” there is inserted “ subsections (2), (2A) and (9) ”;

(b) for subsection (2) there is substituted—

(2) The High Court shall not admit a convicted person to bail under subsection (1) above unless— (a) the application for bail— (i) states reasons why it should be granted; and (ii) where he is the appellant and has not lodged a note of appeal in accordance with section 110(1)(a) of this Act, sets out the proposed grounds of appeal; and (b) the prosecutor has had an opportunity to be heard on the application. (2A) Where— (a) the convicted person is the appellant and has not lodged a note of appeal in accordance with section 110(1)(a) of this Act; or (b) the Lord Advocate is the appellant, the High Court shall not admit the convicted person to bail under subsection (1) above unless it considers there to be exceptional circumstances justifying admitting him to bail.

;

(d) in subsection (7)—

(i) the words from “the application” to the end become paragraph (a); and

(ii) after that paragraph there is inserted

and (b) where the appeal relates to conviction on indictment, the prosecutor has had an opportunity to be heard on the application.

; and

(e) after subsection (8) there is added—

(9) An application for the purposes of subsection (1) or (6) above by a person convicted on indictment shall be— (a) intimated by him immediately and in writing to the Crown Agent; and (b) heard not less than seven days after the date of that intimation.

Adjournment of case before sentence

67

In section 201 (power of court to adjourn case before sentence) of the 1995 Act, in subsection (3), for the words from “exceeding” to the end there is substituted “ exceeding four weeks or, on cause shown, eight weeks. ”.

Part 9 — Bribery and corruption

Bribery and corruption: foreign officers etc.

68

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Bribery and corruption committed outwith UK

69

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part 10 — Criminal records

Registration for criminal records purposes

70

(1) The Police Act 1997 (c. 50) is amended as follows.

(2) After section 120 there is inserted—

(120B) (1) The Scottish Ministers may refuse to include a person in, or may remove a person from, a register maintained under section 120 for the purposes of this Part if it appears to them that the registration of that person is likely to make it possible for information to become available to an individual who, in their opinion, is not a suitable person to have access to that information. (2) The Scottish Ministers may also remove a person from any such register if it appears to them that the registration of that person has resulted in information becoming known to such an individual. (3) In determining, for the purposes of this section, whether an individual is a suitable person to have access to information, the Scottish Ministers may have regard, in particular, to— (a) any information relating to the individual which concerns a relevant matter (“relevant matter” having the same meaning as in section 113); (b) whether that person is included in any list mentioned in section 113(3C); (c) any information provided to them under subsection (4); (d) any information provided to them by the chief officer of a police force in England and Wales or Northern Ireland in response to a request by them for such information as is available to that officer, relates to any such matter as is mentioned in paragraph (b) of subsection (4) and concerns such matter as is mentioned in paragraph (c) of that subsection; (e) anything which has been done— (i) under subsection (1) or (2) or section 122(3); or (ii) in England and Wales or Northern Ireland under the provisions of this Act which apply in England and Wales or Northern Ireland and correspond to subsection (1) or (2), and any information on the basis of which that thing was done. (4) A chief constable of a police force in Scotland shall comply, as soon as practicable after receiving it, with any request by the Scottish Ministers to provide them with information which— (a) is available to him; (b) relates to— (i) an applicant for registration under section 120; (ii) a person so registered; (iii) an individual who is likely to have access to information in consequence of the countersigning of applications by a particular applicant for such registration or by a particular person so registered; and (c) concerns a matter which they have notified the chief constable is a matter which in their opinion is relevant to the determination of the suitability of individuals for having access to information which may be provided by virtue of this Part. (5) The Scottish Ministers shall pay to a police authority the prescribed fee for information which the authority provide— (a) as mentioned in subsection (3)(d); or (b) in accordance with subsection (4).

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In section 119(1) (sources of information), after the word “application” there is inserted “ (whether for a certificate or for registration) ”.

(5) After section 119 there is inserted—

(119A) (1) Any person who holds, in Scotland, records of convictions for the use of police forces generally shall make those records available to the Scottish Ministers for the purpose of enabling them to carry out their functions under this Part in relation to the determination of whether a person should continue to be a person registered under section 120. (2) Where a person holds records of convictions or cautions for the use of police forces generally (but is not required by subsection (1) or section 119(1) to make those records available to the Scottish Ministers) the Scottish Ministers may request that person to make those records available to them; and they may also request that information kept under section 81(1) of the Care Standards Act 2000 (c. 14) (duty of Secretary of State to keep list of individuals who are considered unsuitable to work with vulnerable adults) be made so available. (3) In subsection (1), “person” does not include— (a) a public body; or (b) a holder of a public office, unless that person is a Scottish public authority (as defined in section 126(1) of the Scotland Act 1998 (c. 46)). (4) This section is without prejudice to section 119; and subsection (5) of that section shall apply in relation to records made available in accordance with this section as it does in relation to information made available in accordance with that section.

(6) In section 120 (registered persons)—

(a) in subsection (2), after the words “Subject to” there is inserted “ section 120A and ”; and

(b) in subsection (3), after paragraph (a) there is inserted—

(aa) the nomination by— (i) a body corporate or unincorporate; or (ii) a person appointed to an office by virtue of an enactment, whether that body or person is registered or applying to be registered, of an individual to act for it or, as the case may be, him in relation to the countersigning of applications under this Part; (ab) the refusal by the Scottish Ministers, on such grounds as may be specified in or determined under the regulations, to accept or to continue to accept any nomination made by virtue of this subsection; (ac) as to the period which must elapse before any person refused registration or removed from the register may apply to be included in the register;

(7) In section 122 (code of practice)—

(a) in subsection (1), after the words “provided to” there is inserted “ , or the discharge of any function by, ”; and

(b) after subsection (3) there is added—

(4) Where the Scottish Ministers have reason to believe that— (a) a registered person; or (b) a body or individual at whose request a registered person has countersigned or is likely to countersign an application under section 113 or 115, has failed to comply with the code of practice, they may remove the registered person from the register or impose conditions on him as respects his continuing to be listed in the register

(8) After section 124 there is inserted—

(124A) (1) Where the Scottish Ministers decide to refuse to include a person in the register maintained for the purposes of this Part or, other than by virtue of section 120(3)(b), to remove him from that register they shall notify him in writing of that decision and of their reason for so deciding and shall send a copy of that notification to the Secretary of State. (2) If the person considers that the information upon which the decision was based may have been inaccurate he may, by written notice to the Scottish Ministers setting out his reason for so considering, require them to review the decision; and they shall notify him in writing of the results of their review and of any consequential change in the decision and shall send a copy of— (a) the notice; and (b) the notification, to the Secretary of State. (3) Any notification given by the Scottish Ministers under subsection (1) or (2) shall include information as to the provisions of any regulations made under section 120(3)(ac). (4) The Scottish Ministers may, for the purposes of this section, make regulations as to procedure; and such regulations may, in particular, make provision in relation to— (a) information to be included in any notification under subsection (1) or (2); and (b) the period within which— (i) a requirement may be made under subsection (2); or (ii) a decision under subsection (1) is to be implemented. (124B) (1) The Scottish Ministers shall maintain an annotated list for the purposes of this Part and shall include in that list all persons to whom a criminal record certificate, or as the case may be an enhanced criminal record certificate, has been issued under any of sections 113 to 116 of this Act. (2) The Scottish Ministers may make regulations about the maintenance of the list; and such regulations may, in particular, provide for— (a) the information to be included in the list; (b) the details to be provided, for the purposes of this section, by persons applying to be issued a criminal record certificate or enhanced criminal record certificate or countersigning any such application; (c) the procedure to be followed as respects the exercise of such discretion as is afforded them by subsection (3). (3) The Scottish Ministers may, as respects a person included in the list, if they are satisfied that it is appropriate to do so, notify the registered person who countersigned his application for the certificate in question (or on whose behalf that application was countersigned) or whomever else made the requisite statement which accompanied that application, about any relevant matter relating to the listed person (“relevant matter” having the same meaning as in section 113(5)) of which they become aware after issuing that certificate. (4) The Scottish Ministers are not to be satisfied as is mentioned in subsection (3) unless they are satisfied that the exempted question for the purpose of which the certificate was required remains relevant for the person to whom notification would, under that subsection, be given. (5) Regulations under paragraph (c) of subsection (2)— (a) shall provide for there to be an opportunity for a listed person to make representations as respects whether the Scottish Ministers should be satisfied as is mentioned in subsection (3) and require them to have regard to those representations before giving notification under that subsection; and (b) may require the person who would receive that notification (not being a person who is a Minister of the Crown) to provide them with such information as is in his possession and to which it would be appropriate for them to have regard as respects the exercise of the discretion mentioned in that paragraph.

Part 11 — Local authority functions

Advice, guidance and assistance to persons arrested or on whom sentence deferred

71

(1) The Social Work (Scotland) Act 1968 (c. 49) is amended as follows.

(2) In subsection (1) of section 27 (which requires local authorities, among other things, to provide advice, guidance and assistance for persons in their area who are subject to supervision or treatment by virtue of a court order, enactment or licence or of a referral to a local authority in the absence of prosecution, who are subject to a community service or probation order or who are released from detention), after paragraph (ab) there is inserted—

(ac) the provision of advice, guidance and assistance for persons who are in prison or subject to any other form of detention and who— (i) resided in their area immediately prior to such imprisonment or detention; or (ii) intend to reside in their area on release from such imprisonment or detention, and who on release from such imprisonment or detention, it appears to the local authority, will be required to be under supervision under any enactment or by the terms of an order or licence of the Scottish Ministers or of a condition or requirement imposed in pursuance of an enactment;

(3) After that subsection there is inserted—

(1A) A local authority may provide advice, guidance or assistance for any person who— (a) would fall to be provided for under paragraph (ac) of subsection (1) above but for the fact that it appears to the local authority that he will not be required to be under any form of supervision on release as mentioned in that paragraph; and (b) requests such advice, guidance or assistance. (1B) Where as respects any person more than one local authority is required by paragraph (ac) of subsection (1) to make such provision as is mentioned in that paragraph, they may agree between themselves that only one of them shall do so; and where there is such agreement the paragraph shall apply accordingly.

(4) After that section there is inserted—

(27ZA) (1) It shall be a function of a local authority, if and to such extent as the Scottish Ministers so direct and in accordance with the direction, to provide, directly or indirectly, advice, guidance and assistance to any person (and in particular to any person who appears to the local authority to have dependency problems)— (a) who is arrested and detained in police custody in their area, but only during the period of such detention; or (b) on whom sentence is deferred under section 202(1) of the 1995 Act, but only during the period of deferment and while that person is in their area. (2) The function mentioned in subsection (1)(a) above may continue to be exercised by the local authority while the person is in their area for a period not exceeding 12 months from the date of his release from police custody. (3) In subsection (1) above, “dependency problems” means problems relating to a dependency on drugs, alcohol or some other substance.

(5) In paragraph (a) of section 27A(1) (which enables the Scottish Ministers to make grants to a local authority in respect of expenditure incurred by the authority for the purposes mentioned in section 27(1)), after the words “27(1)” there is inserted “ or 27ZA ”.

Grants to local authorities discharging certain functions jointly

72

In section 27A of the Social Work (Scotland) Act 1968 (which enables the Scottish Ministers to make grants to a local authority in respect of expenditure incurred by the authority for purposes connected with the provision of reports in relation to offenders and with the supervision and care of certain persons subject to supervision or treatment by virtue of court order, enactment or licence or of referral to a local authority in the absence of prosecution), after subsection (1) there is inserted—

(1A) In a case where two or more local authorities are discharging any function mentioned in section 27(1) or 27ZA of this Act jointly, whether or not in accordance with arrangements made under section 56(5) of the Local Government (Scotland) Act 1973 (c. 65), the power of the Scottish Ministers to make grants under subsection (1) above in respect of expenditure incurred for the purposes mentioned in paragraph (a) of that subsection includes a power to make such grants, on such conditions as are mentioned in that subsection, to a local authority nominated by the local authorities from among their number.

Part 12 — Miscellaneous and general

Miscellaneous

Public defence

73

In section 28A of the Legal Aid (Scotland) Act 1986 (c. 47) (power of Scottish Legal Aid Board directly to employ solicitors to provide criminal legal assistance)—

(a) subsections (2), (3) and (10) to (15) are repealed; and

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Offences aggravated by religious prejudice

74

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Reintroduction of ranks of deputy chief constable and chief superintendent

75

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Police custody and security officers

76

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) In section 102(5) of the Criminal Justice and Public Order Act 1994 (c33) (compliance with warrants or orders), at the end there is added “ or by a police custody and security officer in the performance of functions prescribed under section 9(1A)(b) of the Police (Scotland) Act 1967 (c. 77) ”.

(11) In section 307(1) of the 1995 Act (interpretation), in paragraph (c) of the definition of “officer of law”—

(a) after the word “employed” there is inserted “ or appointed ”;

(b) after the words “and who” there is inserted “ either ”; and

Wildlife offences

77

Schedule 3 to this Act, which contains amendments to the Wildlife and Countryside Act 1981 (c. 69) relating to penalties for, and powers of arrest as regards, offences under Part I of that Act, has effect.

Disqualification from jury service

78

(1) In Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c. 55) (ineligibility for and disqualification and excusal from jury service), in Part II, after paragraph (b) there is inserted—

(bb) persons who have been convicted of an offence if, in respect of the conviction, one or more of the following orders was made— (i) a probation order under section 228(1) of the Criminal Procedure (Scotland) Act 1995 (c. 46) (section 247 of that Act being disregarded for the purposes of this head); (ii) a drug treatment and testing order under section 234B(2) of that Act; (iii) a community service order under section 238(1) of that Act; (iv) a restriction of liberty order under section 245A(1) of that Act; (v) a community order as defined by section 33(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6); (vi) a community order as defined by article 2(2) of the Criminal Justice (Northern Ireland) Order 1996 (SI 1996/3160 (N.I.24)); (vii) a drug treatment and testing order under article 8(2) of the Criminal Justice (Northern Ireland) Order 1998 (SI 1998/2839 (N.I.20)), except where they are rehabilitated persons for the purposes of the Rehabilitation of Offenders Act 1974 (c. 53);

(2) Subject to subsection (3), the insertion made by subsection (1) has effect even in relation to a case where the probation order, drug treatment and testing order, community service order, restriction of liberty order or community order is made before the date on which subsection (1) is brought into force.

(3) A person—

(a) cited under section 85(4) of the 1995 Act (citation of jurors); or

(b) summoned by virtue of section 12 of the Court of Session Act 1988 (c. 36) (summoning of jury),

before that date is not, by virtue of subsection (1), excused from attending in compliance with the citation or disqualified from serving as a juror at the sitting, or trial, in question.

Separation of jury after retiral

79

It shall no longer be mandatory for the period during which a jury, after retiring to consider their verdict, are enclosed to be continuous; and accordingly, in section 99 of the 1995 Act (seclusion of jury to consider verdict)—

(a) in subsection (1), for the word “after” there is substituted “ while ”;

(b) in subsection (2), for the words “until the jury” there is substituted “ while the jury are enclosed and until they ”;

(c) in subsection (4)(b), after the word “and” there is inserted “ , unless under subsection (7) below the court permits them to separate, ”; and

(d) at the end there is added—

(7) The court may, if it thinks fit, permit the jury to separate even after they have retired to consider their verdict.

Television link from court to prison or other place of detention

80

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Warrants issued in Northern Ireland for search of premises in Scotland

81

(1) Where a warrant issued by a magistrate or county court judge in Northern Ireland for the search of premises in Scotland is duly endorsed by a sheriff or justice of the peace in whose jurisdiction the warrant purports to authorise search, the warrant has effect as if granted by the sheriff or, as the case may be, justice of the peace.

(2) The reference in subsection (1) to the warrant being duly endorsed is to its being endorsed in the manner specified in subsection (1) of section 4 of the Summary Jurisdiction (Process) Act 1881 (c. 24) as if it were a process mentioned in that subsection.

Use of electronic communications or electronic storage in connection with warrants to search

82

(1) This section, which is without prejudice to section 8 of the Electronic Communications Act 2000 (c. 7) (power to modify legislation), applies to warrants to search granted under section 134(1) of the 1995 Act (that is to say, where incidental to proceedings by complaint or although no subsequent proceedings by complaint may follow).

(2) Subject to subsections (1) and (4), the Scottish Ministers may, in relation to warrants to which this section applies, by order modify—

(a) any rule of law; or

(b) the practice and procedure in relation to criminal proceedings,

in such manner as they think fit so as to authorise or facilitate the use of electronic communications or electronic storage (instead of other forms of communication or storage) for any purpose mentioned in subsection (3).

(3) Those purposes are (in relation to the rule of law or the practice and procedure) the purposes mentioned (in relation to the provisions which may be modified under subsection (1) of section 8 of that Act of 2000) in any of paragraphs (a) to (f) of subsection (2) of that section.

(4) The Scottish Ministers are not to make an order under subsection (2) authorising the use of electronic communications or electronic storage for any purpose unless they consider that the authorisation is such that the extent (if any) to which records of things done for that purpose will be available will be no less satisfactory in cases where use is made of electronic communications or electronic storage than in other cases.

(5) Subsections (4) to (6) and (8) of section 8 and (5) and (6) of section 9 of that Act of 2000 apply in relation to an order made under subsection (2) as they apply in relation to an order made under subsection (1) of the said section 8.

(6) Expressions used in this section and in that Act of 2000 have the same meanings in this section as in that Act.

83

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

General

Transitional provisions etc.

84

(1) The Scottish Ministers may by order make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes, or in consequence, of this Act or of any order made under this Act.

(2) An order under subsection (1) above may amend or repeal any enactment (including any provision of this Act).

Minor and consequential amendments

85

Schedule 4 to this Act, which contains minor amendments and amendments consequential on the provisions of this Act, has effect.

Repeals

86

The enactments mentioned in schedule 5 to this Act are repealed to the extent mentioned in the second column of that schedule.

Interpretation

87

(1) In this Act—

“the 1989 Act”means the Prisons (Scotland) Act 1989 (c. 45);

“the 1993 Act”means the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9);

“the 1995 Act”means the Criminal Procedure (Scotland) Act 1995 (c. 46); and

“prescribed”, except in sections 16ZA(2)(a), 16D(2)(a), 17DA(2)(a) and 21(4), means prescribed by order made by the Scottish Ministers.

(2) Any expression used in this Act and in the 1995 Act is, unless the context requires otherwise, to be construed in accordance with section 307 of that Act (interpretation).

Orders

88

(1) Any power of the Scottish Ministers to make orders or regulations under this Act is exercisable by statutory instrument; and subject to subsection (2) a statutory instrument containing any such order or regulations, other than an order under section 89(2), is subject to annulment in pursuance of a resolution of the Parliament.

(2) A statutory instrument containing an order under section—

(a) 6(1)(b), 11(1), 14(1) or (2), 14(12) (including as applied to section 16(5)), 16(4) , 18B or 42(5); or

(b) 14(13) or 84 which amends or repeals any part of an Act,

is not made unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament.

Short title and commencement

89

(1) This Act may be cited as the Criminal Justice (Scotland) Act 2003.

(2) With the exception of—

(a) this section;

(b) section 77 and schedule 3;

(d) in so far as relating to the Wildlife and Countryside Act 1981 (c. 69), section 86 and schedule 5;

(e) section 87; and

(f) section 88,

this Act comes into force on such day as the Scottish Ministers may by order appoint.

(3) Different days may be so appointed for different provisions and for different purposes.

SCHEDULE 1

Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9)

1

(1) The 1993 Act is amended in accordance with this paragraph.

(2) In section 2 (duty to release discretionary life prisoners)—

(a) in subsection (1), after paragraph (aa) there is inserted

or (ab) who is subject to an order for lifelong restriction in respect of an offence,

;

(b) in subsection (2)(aa)—

(i) after the words “paragraph (a)” there is inserted “ or (ab) ”; and

(ii) in sub-paragraph (i), after the word “life” there is inserted “ , or as the case may be not made the order for lifelong restriction, ”;

(c) in subsection (3), after the words “subsection (1) above” there is inserted “ or makes an order for lifelong restriction ”;

(d) after subsection (9) there is added—

(10) In subsection (9) above, the reference to “sentences of imprisonment for life” is to be construed as including a reference to any sentence constituted by an order for lifelong restriction.

(3) In section 27(1) (interpretation)—

(a) in the definition of “life prisoner”, at the end there is added “ or in respect of whom there has been made an order for lifelong restriction ”; and

(b) the following definitions are inserted at the appropriate places—

“order for lifelong restriction”means an order under section 210F(1) of the Criminal Procedure (Scotland) Act 1995 (c. 46);

“risk management plan”shall be construed in accordance with section 6(1) of the Criminal Justice (Scotland) Act 2003 (asp 7);

Criminal Procedure (Scotland) Act 1995 (c. 46)

2

(1) The 1995 Act is amended in accordance with this paragraph.

(2) In section 69 (notice of previous convictions)—

(a) after subsection (4) there is inserted—

(4A) A notice served under subsection (2) or (4) above shall include any details which the prosecutor proposes to provide under section 101(3A) of this Act; and subsection (3) above shall apply in relation to intimation objecting to the provision of such details, on the grounds that they do not apply to the accused or are otherwise inadmissible, as it applies in relation to intimation objecting to a conviction.

; and

(b) in subsection (5), after the word “section” there is inserted “ , or to the provision of such details as are, by virtue of subsection (4A) above, included in a notice so served, ”.

(3) In section 101 (previous convictions: solemn proceedings)—

(a) in subsection (3), the existing words “for sentence” become paragraph (a); and after that paragraph there is inserted the word “ ; or ” and the following paragraph—

(b) for a risk assessment order (or the court at its own instance proposes to make such an order)

; and

(b) after that subsection there is inserted—

(3A) Where, under paragraph (b) of subsection (3) above, the prosecutor lays previous convictions before the judge, he shall also provide the judge with such details regarding the offences in question as are available to him.

(4) In section 106(1) (right of appeal), after paragraph (b) there is inserted—

(ba) against the making of an order for lifelong restriction;

(5) In section 195(1) (sheriff’s duty in certain circumstances to remit convicted person to High Court for sentence), after—

(a) the word “inadequate” there is inserted “ or it appears to him that the criteria mentioned in section 210E of this Act (that is to say, the risk criteria) may be met ”; and

(b) the words “so that” there is inserted “ , in either case, ”.

(6) In section 204(2A) (restrictions on passing sentence of imprisonment or detention), after the word “court” there is inserted “ , unless it has made a risk assessment order in respect of the person, ”.

(7) In section 307(1) (interpretation), the following definitions are inserted at the appropriate places—

“order for lifelong restriction”means an order under section 210F(1) of this Act;

“risk assessment order”means an order under section 210B(2) of this Act;

“risk assessment report”has the meaning given by section 210B(3)(a) of this Act;

SCHEDULE 2

Status

1

The Risk Management Authority (“the Authority”) is a body corporate.

2

The Authority—

(a) is not a servant or agent of the Crown; and

(b) has no status, immunity or privilege of the Crown,

and its property is not to be regarded as property of, or held on behalf of, the Crown.

Membership

3

(1) The Authority consists of such members (including a convener) as the Scottish Ministers may appoint.

(2) Each member—

(a) is appointed for such period, not exceeding 5 years, as is specified in the terms of the appointment;

(b) holds and vacates office in accordance with those terms;

(d) may, by written notice to the Scottish Ministers, resign membership.

(3) The Scottish Ministers may remove a member from office if they are satisfied that the member—

(a) without reasonable excuse, has not complied with the terms of the appointment;

(b) is otherwise unable or unfit to discharge the functions of member or is unsuitable to continue as a member.

Procedure

4

(1) Subject to any order under subsection (1) of section 11 of this Act, the Authority may—

(a) make provision for the appointment and constitution of committees and sub-committees;

(b) make provision for the exercise of any of its functions by any of its committees, sub-committees, members or employees; and

(i) any of its committees or sub-committees (including any such committee as is mentioned in paragraph (a) or (b) of subsection (1A) of that section); or

(ii) any member or employee to whom a function has been delegated under head (b) above.

(1A) Delegation under sub-paragraph (1)(b) is to be without prejudice to the power of the Authority itself to exercise the function in question.

(1B) Without prejudice to the generality of head (c) of sub-paragraph (1), regulation under that head may include provision as to any quorum.

(2) The validity of any proceedings of the Authority or of any of its committees or sub-committees or of any of its members by whom functions are exercised by virtue of sub-paragraph (1)(b) is not affected by any vacancy in membership nor any defect in the appointment of a member.

Remuneration, allowances and pensions

5

(1) The Authority may, with the approval of the Scottish Ministers, pay—

(a) such remuneration and allowances to its members; and

(b) in respect of any office held by a person as member—

(i) such pension, allowance or gratuity to or in respect of the person; and

(ii) such contribution or other payment towards provision of such pension, allowance or gratuity,

as it may with such approval determine.

(2) Where a person ceases to be a member otherwise than on expiry of term of office, the Authority may, exceptionally and with the approval of the Scottish Ministers, pay to the person such amount by way of compensation for loss of office as it may with such approval determine.

Staff

6

(1) The Authority may, with the approval of the Scottish Ministers, appoint such employees as it considers are required on such terms and conditions as it may with such approval determine.

(2) The authority is to—

(a) pay such pensions, allowances and gratuities to or in respect of its employees or former employees;

(b) make such payment towards provision of such pensions, allowances or gratuities; and

(c) provide and maintain such schemes (whether contributory or not) for the payment of such pensions, allowances and gratuities,

as it may with the approval of the Scottish Ministers determine.

(3) References in sub-paragraph (2) to pensions, allowances or gratuities include their provision by way of compensation for loss of office or employment.

SCHEDULE 3

1

The Wildlife and Countryside Act 1981 (c. 69) is amended in accordance with the following paragraphs.

2

In each of sections 6(8) (regulations as to dealing in dead wild birds etc. after having been convicted of an offence under Part I of the Act) and 7(3) (keeping or possessing certain birds after having been so convicted), for paragraphs (a) and (b) there is substituted

within five years of his having been convicted of— (a) an offence under this Part (being an offence relating to the protection of birds or other animals); or (b) any other offence involving their ill-treatment,

3

In section 7(4) (offence relating to disposal etc. of certain birds), for paragraphs (a) and (b) there is substituted “ within five years of that person’s having been convicted of such an offence as is mentioned in subsection (3), ”.

4

In section 19 (enforcement)—

(a) in subsection (1)(c), the words “if he fails to give his name and address to the constable’s satisfaction” are repealed; and

(b) in subsection (3), for paragraphs (a) and (b) there is substituted “ an offence under this Part ”.

5

In section 20 (summary prosecutions)—

(a) subsection (1) is repealed; and

(b) in subsection (2), for the words “to which this section applies” there is substituted “ under this Part ”.

6

In section 21 (penalties, forfeitures etc.)—

(a) for subsection (1) there is substituted—

(1) Subject to subsection (5), a person guilty of an offence under any of sections 1 to 13 or section 17 shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

;

(b) subsections (2) and (3) are repealed;

(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.

; and

(d) in subsection (5), the words “(2) or (3)” are repealed.

SCHEDULE 4

Prisons (Scotland) Act 1989 (c. 45)

1

Section 42 of the 1989 Act (exercise of powers to make rules, orders, etc.) is amended for the purposes of the existing provisions, within the meaning of Schedule 6 to the 1993 Act, as follows—

(a) in subsection (1), for the words “section 22(1A) or (2), 28(1A) or 37(1)” there is substituted “ section 22(2) or 37(1) ”; and

(b) in subsection (4), for the words “section 22(1A) or (2), 28(1A) of this Act” there is substituted “ section 22(2) of this Act ”.

Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9)

2

(1) The 1993 Act is amended as follows.

(2) In section 1A (application of that Act to persons serving more than one sentence), in paragraph (c)(ii), after the word “specified” there is inserted “ under ”.

(3) In section 10 (life prisoners transferred to Scotland)—

(a) in subsection (2B), after paragraph (b) there are added the words “ and in such a case subsection (3) below applies ”; and

(b) in subsection (3)—

(i) after the word “applies” there is inserted “ (whether by virtue of subsection (2) above or of subsection (2B) above) ”; and

(ii) at the end, there are added the words “ or as the case may be in the certificate or direction referred to in subsection (2D) above ”.

(4) In section 45(3) (exercise of powers to make rules and orders), the words “or (6), 20(3)” are repealed.

Criminal Procedure (Scotland) Act 1995 (c. 46)

3

(1) The 1995 Act is amended as follows.

(2) In each of sections 17A(1)(a) (right of person accused of sexual offence to be told about restriction on conduct of defence: arrest), 35(4A)(a) (judicial examination of accused), 66(6A)(a)(i) (citation and service of indictment), 140(2A)(a) (citation of accused in summary prosecution), 144(3A)(a) (procedure at first summary diet) and 146(3A)(a) (procedure in summary prosecution following not guilty plea), after the word “defence” there is added “ and any proof ordered as is mentioned in section 288C(1) of this Act ”.

(3) In section 220(1) (reduction in term of imprisonment by part payment of fine), after the word “imprisonment”, where it first appears, there is inserted “ imposed under section 219 of this Act in respect of the fine ”.

Crime and Punishment (Scotland) Act 1997 (c. 48)

4

In Schedule 1 to the Crime and Punishment (Scotland) Act 1997, in paragraph 21(29), for the words “(5)” and “(6)” there is substituted “ (6) ” and “ (7) ” respectively.

Convention Rights (Compliance) (Scotland) Act 2001 (asp 7)

5

In the schedule to the Convention Rights (Compliance) (Scotland) Act 2001—

(a) in paragraph 16, for the words “transferred life prisoner” there is substituted “ existing life prisoner ”; and

(b) in paragraph 19, for the word “subsection” there is substituted “ paragraph ”.

SCHEDULE 5

Risk assessment and order for lifelong restriction

Disposal of case where accused found to be insane

Preparation of risk management plans: further provision

Implementation and review of risk management plans

Prohibition of personal conduct of defence in proofs ordered in relation to victim statements in cases of certain sexual offences

Victim statements

Provision of information to person supporting victim

15A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to modify Part

Victim’s right to receive information concerning release etc. of offender

Amendments in relation to certain serious and sexual offences

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Criminal Justice (Scotland) Act 2003

Part 6 — Non-custodial punishments

Restriction of liberty orders

43

Interim anti-social behaviour orders

44

Application by registered social landlord for anti-social behaviour order

45

Requirement for remote monitoring in probation order

46

Requirement for remote monitoring in drug treatment and testing order

47

Breach of certain orders: adjourning hearing and remanding in custody etc.

48

Power of arrest where breach of non-harassment order

49

Amendments in relation to certain non-custodial sentences

50

Part 7 — Children

Physical punishment of children

51

Prohibition of publication of proceedings at children’s hearing etc.

52

Provision by Principal Reporter of information to victims

53

Part 8 — Evidential, jurisdictional and procedural matters

Evidential matters

Certificates relating to physical data: sufficiency of evidence

54

Taking samples by swabbing

55

Retaining sample or relevant physical data where given voluntarily

56

Convictions in other member States of the European Union

57

Jurisdictional matters

Transfer of sheriff court proceedings

58

Competence of justice’s actings outwith jurisdiction

59

Procedural matters

Unified citation provisions

60

Citation other than by service of indictment or complaint

61

Leave to appeal: extension of time limit for application under section 107(4) of 1995 Act

62

Adjournment at first diet in summary proceedings

63

Review hearing of drug treatment and testing order

64

Transcript of record

65

Bail and related matters

66

Adjournment of case before sentence

67

Part 9 — Bribery and corruption

Bribery and corruption: foreign officers etc.

68

Bribery and corruption committed outwith UK

69

Part 10 — Criminal records

Registration for criminal records purposes

70

Part 11 — Local authority functions

Advice, guidance and assistance to persons arrested or on whom sentence deferred

71

Grants to local authorities discharging certain functions jointly

72

Part 12 — Miscellaneous and general

Miscellaneous

Public defence

73

Offences aggravated by religious prejudice

74

Reintroduction of ranks of deputy chief constable and chief superintendent

75

Police custody and security officers

76