Criminal Proceedings etc. (Reform) (Scotland) Act 2007

(8) In subsection (4) above, “representative” means— (a) in the case of a body corporate (other than a limited liability partnership), the managing director, secretary or other person in charge, or locally in charge, of its affairs; (b) in the case of a limited liability partnership, a member of the partnership; (c) in either case, an employee of the body duly appointed by it for the purpose of the proceedings. (9) For the purposes of subsection (8)(c) above, a statement— (a) in the case of a body corporate (other than a limited liability partnership), purporting to be signed by an officer of the body; (b) in the case of a limited liability partnership, purporting to be signed by a member of the partnership, to the effect that the person named in the statement has been appointed as the representative for the purposes of any proceedings to which this section applies is sufficient evidence of such appointment.

.

Jury citation

29

In section 85 (juries: citation and attendance of jurors) of the 1995 Act, after subsection (4) there is inserted—

(4A) Citation of a juror may also be effected by an electronic citation which is sent— (a) by or on behalf of the sheriff clerk; and (b) by means of electronic communication, to the home or business email address of the juror. (4B) Citation under subsection (4A) above is a legal citation if the sheriff clerk possesses 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 juror being cited. (4C) In subsection (4A) above, 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 by or on behalf of the sheriff clerk.

.

Duty to seek agreement of evidence

30

In section 257 (duty to seek agreement of evidence) of the 1995 Act, in subsection (4)—

• (a) for the words “in the case of proceedings in the High Court” there is substituted “ in relation to proceedings on indictment ”,

• (b) for the words “by that subsection are identified and taken before the preliminary hearing” there is substituted

are identified and taken— (a) in the case of the High Court, before the preliminary hearing; (b) in the case of the sheriff court, before the first diet

.

Petition proceedings outwith sheriffdom

31

After section 34 of the 1995 Act there is inserted—

(34A) (1) Where the prosecutor believes— (a) that, because of exceptional circumstances (and without an order under subsection (3) below), it is likely that there would be an unusually high number of accused persons appearing from custody for the first calling of cases on petition in the sheriff courts in the sheriffdom; and (b) that it would not be practicable for those courts to deal with all the cases involved, the prosecutor may apply to the sheriff principal for the order referred to in subsection (2) below. (2) For the purposes of subsection (1) above, the order is for authority for petition proceedings against some or all of the accused persons to be— (a) taken at a sheriff court in another sheriffdom; and (b) maintained— (i) there; or (ii) at any of the sheriff courts referred to in subsection (1) above as may at the first calling of the case be appointed for further proceedings. (3) On an application under subsection (1) above, the sheriff principal may make the order sought with the consent of the sheriff principal of the other sheriffdom. (4) An order under subsection (3) above may be made by reference to a particular period or particular circumstances. (5) This section does not confer jurisdiction for any subsequent proceedings on indictment.

.

Failure of accused to appear

32

After section 102 of the 1995 Act there is inserted—

(102A) (1) In proceedings on indictment, an accused person who without reasonable excuse fails to appear at a diet of which the accused has been given due notice (apart from a diet which the accused is not required to attend) is— (a) guilty of an offence; and (b) liable on conviction on indictment to a fine or to imprisonment for a period not exceeding 5 years or to both. (2) In proceedings on indictment, where an accused person fails to appear at a diet of which the accused has been given due notice (apart from a diet which the accused is not required to attend), the court may grant a warrant to apprehend the accused. (3) It is not, otherwise than under subsection (2) above, competent in any proceedings on indictment for a court to grant a warrant for the apprehension of an accused person for failure to appear at a diet. (4) However, it remains competent for a court to grant a warrant on petition (as referred to in section 34 of this Act) in respect of an offence under— (a) subsection (1) above; (b) section 27(1)(a) of this Act, whether or not a warrant has been granted under subsection (2) above in respect of the same failure to appear to which that offence relates. (5) Where a warrant to apprehend an accused person is granted under subsection (2) above, the indictment falls as respects that accused. (6) Subsection (5) above is subject to any order to different effect made by the court when granting the warrant. (7) An order under subsection (6) above— (a) for the purpose of proceeding with the trial in the absence of the accused under section 92(2A) (where the warrant is granted at a trial diet), 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. (8) A warrant granted under subsection (2) above shall be in such form as may be prescribed by Act of Adjournal or as nearly as may be in such form. (9) A warrant granted under subsection (2) above (in the form mentioned in subsection (8) above) shall imply warrant to officers of law— (a) to search for and apprehend the accused; (b) to bring the accused before the court; (c) in the meantime, to detain the accused in a police station, police cell or other convenient place; and (d) so far as is necessary for the execution of the warrant, to break open shut and lockfast places. (10) An accused apprehended under a warrant granted under subsection (2) above shall wherever practicable be brought before the court not later than in the course of the first day on which the court is sitting after the accused is taken into custody. (11) Where the accused is brought before the court in pursuance of a warrant granted under subsection (2) above, the court shall make an order— (a) detaining the accused until liberated in due course of law; or (b) releasing the accused on bail. (12) For the purposes of subsection (11) above, the court is to have regard to the terms of the indictment in relation to which the warrant was granted even if that indictment has fallen. (13) In a case where a warrant is granted under subsection (2) above, any period of time during which the accused was detained in custody— (a) as regards that case; and (b) prior to the making of an order under subsection (11) above, does not count towards any time limit applying in that case by virtue of section 65(4) of this Act. (14) For the purposes of subsection (13) above— (a) detention as regards a case includes, in addition to detention as regards the indictment in relation to which the warrant was granted (whether or not that indictment has fallen), detention as regards any preceding petition; (b) it is immaterial whether or not further proceedings are on a fresh indictment. (15) At any time before the trial of an accused person on indictment, it is competent— (a) to amend the indictment so as to include an additional charge of an offence under subsection (1) above; (b) to include, in the list of witnesses or productions associated with the indictment, witnesses or productions relating to that offence. (16) In this section, “the court” means— (a) where the accused failed to appear at the High Court— (i) for the purposes of subsections (10) to (12) above, that Court (whether or not constituted by a single judge); (ii) otherwise, a single judge of that Court; (b) where the accused failed to appear at a sheriff court, any sheriff court with jurisdiction in relation to the proceedings.

.

Miscellaneous

Apprehension warrants

33

After section 297 of the 1995 Act there is inserted—

(297A) (1) This section applies where a person has been apprehended under a warrant (the “original warrant”) granted under this Act in relation to any proceedings. (2) If the person absconds, the person may be re-apprehended under the original warrant (and as if that warrant had not been executed to any extent). (3) If, for any reason, it is not practicable to bring the person before the court as required under a provision of this Act applying in the case, the person is to be brought before the court as soon as practicable after the relevant reason ceases to prevail. (4) Despite subsection (3) above, if— (a) the original warrant was granted in solemn proceedings; and (b) the impracticability arises because the person needs medical treatment or care, the person may be released. (5) A person released under subsection (4) above may be re-apprehended under the original warrant (and as if that warrant had not been executed to any extent). (6) Subsection (3) above does not affect the operation of section 22(1B) of this Act (which relates to liberation on an undertaking of persons apprehended under warrant granted in summary proceedings). (7) Nothing in this section prevents a court from granting a fresh warrant for the apprehension of the person. (8) Subject to this section are— (a) any rule of law as to bringing a person before a court in pursuance of a warrant granted on petition (as referred to in section 34 of this Act); (b) section 102A(10) of this Act; (c) section 135(3) (including as applying in relation to sections 22(1B) and 156) of this Act; (d) section 90A(9) of this Act.

.

Participation in identification procedures

34

After section 267A of the 1995 Act there is inserted—

(267B) (1) The court may, on an application by the prosecutor in any proceedings, make an order requiring the accused person to participate in an identification parade or other identification procedure. (2) The application may be made at any time after the proceedings have been commenced. (3) The court— (a) shall (if the accused is present) allow the accused to make representations in relation to the application; (b) may, if it considers it appropriate to do so (where the accused is not present), fix a hearing for the purpose of allowing the accused to make such representations. (4) Where an order is made under subsection (1) above, the clerk of court shall (if the accused is not present) have notice of the order effected as respects the accused without delay. (5) Notice under subsection (4) above shall (in relation to any proceedings) be effected in the same manner as citation under section 141 of this Act. (6) It is sufficient evidence that notice has been effected under subsection (5) above if there is produced a written execution— (a) in the form prescribed by Act of Adjournal or as nearly as may be in such form; and (b) signed by the person who effected notice. (7) In relation to notice effected by means of registered post or the recorded delivery service, the relevant post office receipt requires to be produced along with the execution mentioned in subsection (6) above. (8) A person who, having been given due notice of an order made under subsection (1) above, without reasonable excuse fails to comply with the order is— (a) guilty of an offence; and (b) liable on summary conviction to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 12 months or to both. (9) For the purpose of subsection (5) above, section 141 of this Act is to be read with such modifications as are necessary for its application in the circumstances. (10) In this section, “the court” means— (a) in the case of proceedings in the High Court, a single judge of that Court; (b) in any other case, any court with jurisdiction in relation to the proceedings.

.

Evidence on commission

35

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

• (a) in subsection (6A)—

• (i) in paragraph (a)(i), after the word “defence” there is inserted “ (including at any commissioner proceedings) ”,

• (ii) in paragraph (a)(iii), after the word “trial” there is inserted “ (or at any related commissioner proceedings) ”,

• (b) after subsection (14) there is added—

(15) In subsection (6A) above, “commissioner proceedings” means proceedings before a commissioner appointed under section 271I(1) or by virtue of section 272(1)(b) of this Act.

.

• (2) In section 140 (citation) of that Act—

• (a) in subsection (2A)—

• (i) in paragraph (a), after the word “defence” there is inserted “ (including at any commissioner proceedings) ”,

• (ii) in paragraph (c), after the word “trial” there is inserted “ (or at any related commissioner proceedings) ”,

• (b) after subsection (2B) there is added—

(2C) In subsection (2A) above, “commissioner proceedings” means proceedings before a commissioner appointed under section 271I(1) or by virtue of section 272(1)(b) of this Act.

.

• (3) In section 271I (taking of evidence by a commissioner) of that Act—

• (a) after subsection (1) there is inserted—

(1A) Proceedings before a commissioner appointed under subsection (1) above shall, if the court so directed when authorising such proceedings, take place by means of a live television link between the place where the commissioner is taking, and the place from which the witness is giving, evidence.

,

• (b) in subsection (3)(a), for the words “present in the room where such proceedings are taking place” there is substituted

present— (i) in the room where such proceedings are taking place; or (ii) if such proceedings are taking place by means of a live television link, in the same room as the witness

,

• (c) after subsection (4) there is added—

(5) Sections— (a) 274; (b) 275; (c) 275B except subsection (2)(b); (d) 275C; (e) 288C; (f) 288E; and (g) 288F, of this Act apply in relation to proceedings before a commissioner appointed under subsection (1) above as they apply in relation to a trial. (6) In the application of those sections in relation to such proceedings— (a) the commissioner acting in the proceedings is to perform the functions of the court as provided for in those sections; (b) references— (i) in those sections, except section 275(3)(c) and (7)(c), to a trial or a trial diet; (ii) in those sections, except sections 275(3)(e) and 288F(2), (3) and (4), to the court, shall be read accordingly; (c) the reference in section 275B(1) to 14 days shall be read as a reference to 7 days. (7) In a case where it falls to the court to appoint a commissioner under subsection (1) above, the commissioner shall be a person described in subsection (8) below. (8) The persons are— (a) where the proceedings before the commissioner are for the purposes of a trial in the High Court, a judge of the High Court; or (b) in any other case, a sheriff.

.

• (4) In section 272 (evidence by letter of request or on commission) of that Act, after subsection (9) there is added—

(10) Sections— (a) 274; (b) 275; (c) 275B except subsection (2)(b); (d) 275C; and (e) 288C, of this Act apply in relation to proceedings in which a commissioner examines a witness under subsection (1)(b) above as they apply in relation to a trial. (11) In the application of those sections in relation to such proceedings— (a) the commissioner acting in the proceedings is to perform the functions of the court as provided for in those sections; (b) references— (i) in those sections, except section 275(3)(c) and (7)(c), to a trial or a trial diet; (ii) in those sections, except section 275(3)(e), to the court, shall be read accordingly; (c) the reference in section 275B(1) to 14 days shall be read as a reference to 7 days. (12) In a case where it falls to the court to appoint a commissioner for the purposes of subsection (1)(b) above, the commissioner shall be a person described in subsection (13) below. (13) The persons are— (a) where the proceedings before the commissioner are for the purposes of a trial in the High Court, a judge of the High Court; or (b) in any other case, a sheriff.

.

• (5) In section 275A(1) (disclosure of accused's previous convictions where court allows questioning or evidence under section 275) of that Act, after the word “court” there is inserted “ (or, in proceedings before a commissioner appointed under section 271I(1) or by virtue of section 272(1)(b) of this Act, a commissioner) ”.

• (6) In section 288D (appointment of solicitor by court in such cases) of that Act—

• (a) in subsection (2), after paragraph (a)(ii) there is inserted—

(iii) the conduct of his case at any commissioner proceedings; or

,

• (b) in subsection (6), after the word “trial” there is inserted “ (or at any related commissioner proceedings) ”,

• (c) after that subsection there is inserted—

(6A) Where, in relation to commissioner proceedings, the commissioner is satisfied that a solicitor so appointed is no longer able to act upon the instructions, or in the best interests, of the accused, the commissioner is (for the purpose of the application of subsection (6) above) to refer the case to the court.

,

• (d) in subsection (7), for the word “(6)” in the first place where it occurs there is substituted “ (6A) ”,

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

(9) In this section, “commissioner proceedings” means proceedings before a commissioner appointed under section 271I(1) or by virtue of section 272(1)(b) of this Act.

.

Victim notification scheme

36

In section 16 (victim's right to receive information concerning release etc. of offender) of the Criminal Justice (Scotland) Act 2003 (asp 7)—

• (a) in subsection (5)(b)(ii), after the word “sub-paragraph” in the second place where it occurs there is inserted “ and as if in paragraph (a)(ii) of the said section 14(6) (as it applies by virtue of that sub-paragraph) the words “, immediately before the offence (or apparent offence) was perpetrated, cared” were “cares” ”,

• (b) after subsection (6) there is added—

(7) Where, but for section 14(8) (as it applies in relation to subsection (5)(a)), information would— (a) under subsection (1) (as read with subsection (5)(a)); and (b) by virtue of section 14(10)(c) to (e) and (g) to (i) (as it applies in relation to subsection (5)(a)), fall to be given to a child who has not attained the age of fourteen years, that information is to be given instead to a person who cares for the child. (8) In subsection (7), the reference to a person who cares for the child is to be construed in accordance with section 2(28) of the Regulation of Care (Scotland) Act 2001 (asp 8).

.

Recovery of documents

37

After section 301 of the 1995 Act there is inserted—

(301A) (1) It is competent for the sheriff court to make, in connection with any criminal proceedings mentioned in subsection (2) below, the orders mentioned in subsection (3) below. (2) The proceedings are— (a) solemn proceedings in that sheriff court; (b) summary proceedings— (i) in that sheriff court; (ii) in any JP court in that sheriff court's district. (3) The orders are— (a) an order granting commission and diligence for the recovery of documents; (b) an order for the production of documents. (4) An application for the purpose may not be made— (a) in connection with solemn proceedings, until the indictment has been served on the accused or the accused has been cited under section 66(4)(b) of this Act; (b) in connection with summary proceedings, until the accused has answered the complaint. (5) A decision of the sheriff on an application for an order under subsection (1) above may be appealed to the High Court. (6) In an appeal under subsection (5) above, the High Court may uphold, vary or quash the decision of the sheriff. (7) The prosecutor is entitled to be heard in any— (a) application for an order under subsection (1) above; (b) appeal under subsection (5) above, even if the prosecutor is not a party to the application or (as the case may be) appeal. (8) The competence of the High Court to make, in connection with criminal proceedings, the orders mentioned in subsection (3) above is restricted to making them in connection with proceedings in that court.

.

Intimation of certain applications to the High Court

38

After section 298 of the 1995 Act there is inserted—

(298A) (1) This subsection applies where the prosecutor requires to intimate to the respondent— (a) a bill of advocation; (b) a petition to the nobile officium; or (c) an order of the High Court relating to such a bill or (as the case may be) petition. (2) Where subsection (1) above applies, the requirement may be met by serving on the respondent or the respondent's solicitor a copy of the bill, petition or (as the case may be) order. (3) Service under subsection (2) above may (in relation to any proceedings) be effected— (a) on the respondent, in the same manner as citation under section 141 of this Act; (b) on the respondent's solicitor, by post. (4) This subsection applies where a person requires to intimate to the prosecutor— (a) a bill of suspension or advocation; (b) a petition to the nobile officium; or (c) an order of the High Court relating to such a bill or (as the case may be) petition. (5) Where subsection (4) above applies, the requirement may be met by serving on the prosecutor a copy of the bill, petition or (as the case may be) order. (6) Service under subsection (5) above may (in relation to any proceedings) be effected by post. (7) It is sufficient evidence that service has been effected under subsection (3) or (6) above if there is produced a written execution— (a) in the form prescribed by Act of Adjournal or as nearly as may be in such form; and (b) signed by the person who effected service. (8) In relation to service effected by means of registered post or the recorded delivery service, the relevant post office receipt requires to be produced along with the execution mentioned in subsection (7) above. (9) A party who has service effected under subsection (3) or (6) above must, as soon as practicable thereafter, lodge with the Clerk of Justiciary a copy of the execution mentioned in subsection (7) above. (10) For the purpose of subsection (3)(a) above, section 141 of this Act is to be read with such modifications as are necessary for its application in the circumstances. (11) This section is without prejudice to any rule of law or practice by virtue of which things of the kinds mentioned in subsections (1) and (4) above (including copies) may be intimated or served.

.

Refixing diets

39

• (1) After section 75A (adjournment and alteration of diets) of the 1995 Act there is inserted—

(75B) (1) This section applies where in any proceedings on indictment any diet has been fixed for a non-sitting day. (2) The court may at any time before the non-sitting day— (a) discharge the diet; and (b) fix a new diet for a date earlier or later than that for which the discharged diet was fixed. (3) That is, by acting— (a) of the court's own accord; and (b) without the need for a hearing for the purpose. (4) In the case of a trial diet— (a) the prosecutor; (b) the accused, shall be entitled to an adjournment of the new diet fixed if the court is satisfied that it is not practicable for that party to proceed with the case on that date. (5) The power of the court under subsection (1) above is not exercisable for the sole purpose of ensuring compliance with a time limit applying in the proceedings. (6) In subsections (1) and (2) above, a “non-sitting day” is a day on which the court is under this Act not required to sit. (7) In subsections (2) to (5) above, “the court” means— (a) in the case of proceedings in the High Court, a single judge of that Court; (b) in the case of proceedings in the sheriff court, that court.

.

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

(137ZA) (1) This section applies where in a summary prosecution any diet has been fixed for a non-sitting day. (2) The court may at any time before the non-sitting day— (a) discharge the diet; and (b) fix a new diet for a date earlier or later than that for which the discharged diet was fixed. (3) That is, by acting— (a) of the court's own accord; and (b) without the need for a hearing for the purpose. (4) In the case of a trial diet— (a) the prosecutor; (b) the accused, shall be entitled to an adjournment of the new diet fixed if the court is satisfied that it is not practicable for that party to proceed with the case on that date. (5) The power of the court under subsection (1) above is not exercisable for the sole purpose of ensuring compliance with a time limit applying in the proceedings. (6) In subsections (1) and (2) above, a “non-sitting day” is a day on which the court is under this Act not required to sit.

.

Power of court to excuse procedural irregularities

40

After section 300 of the 1995 Act there is inserted—

(300A) (1) Any court may excuse a procedural irregularity— (a) of a kind described in subsection (5) below; and (b) which has occurred in relation to proceedings before that court, if the conditions mentioned in subsection (4) below are met. (2) In appeal proceedings, the High Court may excuse a procedural irregularity— (a) of that kind; and (b) which has occurred in relation to earlier proceedings in the case that is the subject of the appeal, if those conditions are met. (3) A court may proceed under subsection (1) or (2) above on the application of the prosecutor or an accused person (having given the other an opportunity to be heard). (4) The conditions are that— (a) it appears to the court that the irregularity arose because of— (i) mistake or oversight; or (ii) other excusable reason; and (b) the court is satisfied in the circumstances of the case that it would be in the interests of justice to excuse the irregularity. (5) A procedural irregularity is an irregularity arising at any stage of proceedings— (a) from— (i) failure to call or discharge a diet properly; (ii) improper adjournment or continuation of a case; (iii) a diet being fixed for a non-sitting day; (b) from failure of— (i) the court; or (ii) the prosecutor or the accused, to do something within a particular period or otherwise comply with a time limit; (c) from failure of the prosecutor to serve properly a notice or other thing; (d) from failure of the accused to— (i) intimate properly a preliminary objection; (ii) intimate properly a plea or defence; (iii) serve properly a notice or other thing; (e) from failure of— (i) the court; or (ii) the prosecutor or the accused, to fulfil any other procedural requirement. (6) Subsection (1) above does not authorise a court to excuse an irregularity arising by reason of the detention in custody of an accused person for a period exceeding that fixed by this Act. (7) Subsection (1) above does not apply in relation to any requirement as to proof including, in particular, any matter relating to— (a) admissibility of evidence; (b) sufficiency of evidence; or (c) any other evidential factor. (8) Where a court excuses an irregularity under subsection (1) above, it may make such order as is necessary or expedient for the purpose of— (a) restoring the proceedings as if the irregularity had never occurred; (b) facilitating the continuation of the proceedings as if it had never occurred, for example— (i) altering a diet; (ii) extending any time limit; (iii) appointing a diet for further procedure or granting an adjournment or continuation of a diet; (c) protecting the rights of the parties. (9) For the purposes of this section— (a) a reference to an accused person, except the reference in subsection (6) above, includes reference to a person who has been convicted of an offence; (b) something is done properly if it is done in accordance with a requirement of an enactment or any rule of law. (10) In subsection (5)(a)(iii) above, a “non-sitting day” is a day on which the court is under this Act not required to sit. (11) This section is without prejudice to any provision of this Act under which a court may— (a) alter a diet; or (b) extend— (i) a period within which something requires to be done; or (ii) any other time limit. (12) This section is without prejudice to any rule of law by virtue of which it may be determined by a court that breach, in relation to criminal proceedings— (a) of a requirement of an enactment; or (b) of a rule of law, does not render the proceedings, or anything done (or purported to have been done) for the purposes of or in connection with proceedings, invalid.

.

Electronic proceedings

Electronic proceedings

41

• (1) After section 303A of the 1995 Act there is inserted—

(303B) (1) For the purposes of section 138(1) of this Act— (a) institution of proceedings may be effected by electronic complaint; (b) the requirement for signing is satisfied in relation to an electronic complaint by an electronic signature; (c) the requirement for signing may be satisfied in relation to any other complaint by an electronic signature. (2) The references in the other provisions of this Act to a complaint include an electronic complaint unless the context otherwise requires. (3) Where proceedings are instituted by electronic complaint, in the event of any conflict between— (a) the principal electronic complaint kept by the clerk of court for the purposes of the proceedings; and (b) any other document (whether in electronic or other form) purporting to be the complaint, the principal electronic complaint prevails. (4) The requirement in section 85(4) of this Act for signing may be satisfied by electronic signature. (5) The requirement in section 136B(2) of this Act for signing may be satisfied by electronic signature. (6) The requirement in section 141(3)(a) of this Act for signing may be satisfied by electronic signature. (7) The requirement in section 159(3) of this Act for authentication by initials is satisfied in relation to an electronic complaint by authentication by electronic signature. (8) The requirements in section 172(2) of this Act for signing by the clerk of court may be satisfied by electronic signature. (9) The requirements in section 258(2) and (9) of this Act for signing may be satisfied in relation to summary proceedings by electronic signature. (10) The requirement in section 299(5) of this Act for authentication by signature is satisfied in relation to— (a) proceedings which are recorded in electronic form; (b) any extract of sentence, or order made, which is recorded in electronic form, by authentication by electronic signature.

.

• (2) After section 308 of the 1995 Act there is inserted—

(308A) (1) In this Act, an “electronic complaint” is a complaint in electronic form which is capable of being— (a) transmitted by means of electronic communication; (b) kept in legible form. (2) In this Act, unless the context otherwise requires— - “electronic communication” is to be construed in accordance with section 15(1) of the Electronic Communications Act 2000 (c. 7); - “electronic signature” is to be construed in accordance with section 7(2) of the Electronic Communications Act 2000, but includes a version of an electronic signature which is reproduced on a paper document. (3) The Scottish Ministers may by order modify the meaning of “electronic signature” provided for in subsection (2) above for the purpose of such provisions of this Act as are specified in the order. (4) An order under subsection (3) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.

.

Further provision for summary cases

42

• (1) The Scottish Ministers may, in relation to summary criminal proceedings, by order make provision for the purposes of or in connection with—

• (a) using electronic complaints and other documents in electronic form,

• (b) keeping, in electronic form, records of proceedings,

• (c) allowing requirements as to formality (and validity) of documents to be satisfied by electronic means,

• (d) using electronic communication.

• (2) Provision in an order under subsection (1) may, in particular, relate to—

• (a) the availability of documents and records in electronic or other form to specified persons or classes of person,

• (b) the authentication of—

• (i) documents and records,

• (ii) information contained in documents and records,

• (c) the use of electronic signatures in documents and records.

• (3) An order under subsection (1) may make provision by amending the 1995 Act or otherwise.

• (4) In subsection (1), the expressions “electronic complaint” and “electronic communication” are to be construed by reference to section 308A (expressions relating to electronic proceedings) of the 1995 Act.

Part 3 — Penalties

Sentencing powers

Common law offences

43

In section 5 (the sheriff: summary jurisdiction and powers) of the 1995 Act—

• (a) in paragraph (d) of subsection (2), for the word “three” there is substituted “ 12 ”, and

• (b) subsection (3) is repealed.

Particular statutory offences

44

• (1) In section 41 (assaults on constables, etc.) of the Police (Scotland) Act 1967 (c. 77), in subsection (1), for the word “nine” there is substituted “ 12 ”.

• (2) In section 26A (enforcement of wildlife legislation) of the Wildlife and Countryside Act 1981 (c. 69), for the words from “as amended” to “97/62/EC” there is substituted “ (that is, the Directive as amended from time to time by any other EU instrument or otherwise) ”.

• (3) In section 37 (offences) of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8)—

• (a) in subsection (4), for the words from “(a “relevant offence”)” to the end there is substituted “ shall be liable on summary conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding the prescribed sum within the meaning of section 225(8) of the Criminal Procedure (Scotland) Act 1995 (c. 46) or to both. ”,

• (b) subsection (5) is repealed.

• (4) In section 6 (penalties) of the Emergency Workers (Scotland) Act 2005 (asp 2)—

• (a) for the word “9” there is substituted “ 12 ”,

• (b) for the words “level 5 on the standard scale” there is substituted “ the prescribed sum within the meaning of section 225(8) of the Criminal Procedure (Scotland) Act 1995 (c. 46) ”.

• (5) In section 39 (assaulting or impeding employees discharging certain functions) of the Fire (Scotland) Act 2005 (asp 5), in subsection (4)—

• (a) for the word “9” there is substituted “ 12 ”,

• (b) after the word “scale” there is added “ or to both ”.

• (6) This section does not affect the penalty for an offence committed before the coming into force of this section.

Other statutory offences

45

• (1) The maximum term of imprisonment to which a person is liable on summary conviction of a relevant offence is, by virtue of this subsection, 12 months.

• (2) Accordingly, the specification of a maximum period of imprisonment in every relevant penalty provision is, in relation to any relevant offence to which it applies, to be read subject to subsection (1).

• (3) Without prejudice to subsections (1) and (2), the Scottish Ministers may by order amend the specification of a maximum term of imprisonment in a relevant penalty provision so as to specify, in relation to the relevant offence to which it applies, that the maximum term of imprisonment to which a person is liable on summary conviction is 12 months.

• (4) The specification of a maximum period of imprisonment in a relevant power is, in relation to any offence to which it applies, to be read as a period of 12 months.

• (5) Without prejudice to subsection (4), the Scottish Ministers may by order amend a relevant power so as to increase to 12 months the maximum term of imprisonment specified in the power.

• (6) In this section, a “relevant offence”is an offence under a relevant enactment or instrument which is—

• (a) triable either on indictment or summary complaint, and

• (b) punishable on summary conviction with a maximum term of imprisonment of less than 12 months.

• (7) In this section—

• a “relevant enactment”is an Act passed before this Act,

• a “relevant instrument”is any subordinate legislation made before the passing of this Act,

• a “relevant penalty provision”is a provision of a relevant enactment or instrument which specifies the penalties to which a person is liable on summary conviction of a relevant offence,

• a ”relevant power”is a provision of a relevant enactment which confers a power (however expressed) for subordinate legislation to make a person, as regards an offence that is triable either on indictment or summary complaint, liable on summary conviction to a maximum term of imprisonment of less than 12 months.

• (8) For the purposes of subsection (7), reference to the passing of an Act is to be construed, in the case of an Act of the Scottish Parliament (including this Act), as reference to the passing by the Parliament of the Bill for the Act.

JP court: power to increase penalties

46

• (1) The Scottish Ministers may by order amend any specification of a maximum—

• (a) term of imprisonment,

• (b) level of fine,

• (c) amount of caution,

in section 7(6) or (7) of the 1995 Act.

• (2) The Scottish Ministers may by order amend any specification, in relation to the JP court, of a maximum—

• (a) term of imprisonment,

• (b) level of fine,

in any other enactment.

• (3) An order under subsection (1) or (2) may not make provision for—

• (a) a term of imprisonment exceeding 6 months,

• (b) a fine exceeding level 5 on the standard scale,

• (c) an amount of caution exceeding level 5 on the standard scale.

Fine level

47

• (1) The maximum fine to which a person is liable on summary conviction of a relevant offence is, by virtue of this subsection, the statutory maximum.

• (2) Accordingly, the specification (by reference to level 5 on the standard scale) of a maximum fine in every relevant penalty provision is, in relation to any relevant offence to which it applies, to be read subject to subsection (1).

• (3) Without prejudice to subsections (1) and (2), the Scottish Ministers may by order amend the specification of a maximum fine in a relevant penalty provision so as to specify, in relation to the relevant offence to which it applies, that the maximum fine to which a person is liable on summary conviction is the statutory maximum.

• (4) The specification (by reference to level 5 on the standard scale) of a maximum fine in a relevant power is, in relation to any offence to which it applies, to be read as the statutory maximum.

• (5) Without prejudice to subsection (4), the Scottish Ministers may by order amend the specification of a maximum fine in a relevant power so as to increase to the statutory maximum the maximum fine specified in the power.

• (6) In this section, a “relevant offence” is an offence under a relevant enactment or instrument which is—

• (a) triable either on indictment or summary complaint, and

• (b) punishable on summary conviction with a maximum fine specified as level 5 on the standard scale.

• (7) In this section—

• a “relevant enactment” is an Act passed before this Act,

• a “relevant instrument” is any subordinate legislation made before the passing of this Act,

• a “relevant penalty provision” is a provision of a relevant enactment or instrument which specifies the penalties to which a person is liable on summary conviction of a relevant offence,

• a “relevant power” is a provision of a relevant enactment which confers a power (however expressed) for subordinate legislation to make a person, as regards an offence that is triable either on indictment or summary complaint, liable on summary conviction to a maximum fine specified as level 5 on the standard scale.

• (8) For the purposes of subsection (7), reference to the passing of an Act is to be construed, in the case of an Act of the Scottish Parliament (including this Act), as reference to the passing by the Parliament of the Bill for the Act.

Prescribed sum

48

In section 225 (penalties: standard scale, prescribed sum and uprating) of the 1995 Act, in subsection (8), for the words “£5,000” there is substituted “ £10,000 ”.

Compensation orders

49

• (1) In section 249 (compensation order against convicted person) of the 1995 Act—

• (a) in subsection (1), for the words from “any” in the second place where it occurs to the end there is substituted

any— (a) personal injury, loss or damage caused directly or indirectly; or (b) alarm or distress caused directly, to the victim.

,

• (b) after that subsection there is inserted—

(1A) For the purposes of subsection (1) above, “victim” means— (a) a person against whom; or (b) a person against whose property, the acts which constituted the offence were directed.

.

• (2) In section 251(1)(a) (review of compensation order) of that Act, for the words “or damage” there is substituted “ , damage, alarm or distress ”.

• (3) In section 253(1) (effect of compensation order on subsequent award of damages in civil proceedings) of that Act, for the words “or damage” there is substituted “ , damage, alarm or distress ”.

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

Penalties as alternative to prosecution

Fixed penalty and compensation offers

50

• (1) In section 302 (fixed penalty: conditional offer by procurator fiscal) of the 1995 Act—

• (a) in subsection (2)—

• (i) for sub-paragraph (ii) of paragraph (b) there is substituted—

(ii) if the penalty is to be payable by instalments, the amount of the instalments and the intervals at which they should be paid;

,

• (ii) sub-paragraph (iii) of that paragraph and the word “and” immediately preceding it are repealed,

• (iii) in paragraph (c), for the words “of the fixed penalty or of the first instalment thereof” there is substituted “ in respect of the fixed penalty ”,

• (iv) after paragraph (c) there is inserted—

(ca) shall indicate— (i) that the alleged offender may refuse the conditional offer by giving notice to the clerk of court in the manner specified in the conditional offer before the expiry of 28 days, or such longer period as may be specified in the conditional offer, beginning on the day on which the conditional offer is made; (ii) that unless the alleged offender gives such notice, the alleged offender will be deemed to have accepted the conditional offer (even where no payment is made in respect of the offer); (iii) that where the alleged offender is deemed as described in sub-paragraph (ii) above to have accepted the conditional offer any liability to conviction of the offence shall be discharged except where the offer is recalled under section 302C of this Act;

,

• (v) the word “and” immediately following paragraph (d) is repealed,

• (vi) for paragraph (e) there is substituted—

(e) shall state— (i) that the acceptance of the offer in the manner described in paragraph (c) above, or deemed acceptance of the offer as described in paragraph (ca)(ii) above, shall not be a conviction nor be recorded as such; (ii) that the fact that the offer has been accepted, or deemed to have been accepted, may be disclosed to the court in any proceedings for an offence committed by the alleged offender within the period of two years beginning on the day of acceptance of the offer; (iii) that if the offer is not accepted, that fact may be disclosed to the court in any proceedings for the offence to which the conditional offer relates; (f) shall state that refusal of a conditional offer under paragraph (ca)(i) above will be treated as a request by the alleged offender to be tried for the offence; and (g) shall explain the right to request a recall of the fixed penalty under section 302C of this Act.

,

• (b) for subsection (4) there is substituted—

(4) The clerk of court shall— (a) without delay, notify the procurator fiscal who issued the conditional offer when a notice as described in subsection (2)(ca)(i) above has been received in respect of the offer; or (b) following the expiry of the period of 28 days referred to in subsection (2)(c) above or such longer period as may be specified in the offer, notify the procurator fiscal if no such notice has been received.

,

• (c) after subsection (4) there is inserted—

(4A) A conditional offer is accepted by the alleged offender making any payment in respect of the appropriate fixed penalty. (4B) Where an alleged offender to whom a conditional offer of a fixed penalty is made does not give notice as described in subsection (2)(ca)(i) above, the alleged offender is deemed to have accepted the conditional offer. (4C) Where— (a) an alleged offender accepts a conditional offer as described in subsection (4A) above; or (b) an alleged offender is deemed to have accepted a conditional offer under subsection (4B) above and the fixed penalty is not recalled, no proceedings shall be brought against the alleged offender for the offence.

,

• (d) subsections (5) and (6) are repealed,

• (e) in subsection (7), the words from “, the amount” to the end are repealed,

• (f) after subsection (7) there is inserted—

(7A) The amount of the maximum penalty on the scale prescribed under subsection (7) above may not exceed £300 or such higher sum as the Scottish Ministers may by order specify.

,

• (g) in subsection (8)—

• (i) after the word “(7)” there is inserted “ or (7A) ”,

• (ii) in paragraph (b), for the words from “be” in the second place where it occurs to the end there is substituted “ not be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament ”,

• (h) after subsection (8) there is inserted—

(8A) The alleged offender shall be presumed to have received a conditional offer under subsection (1) above if the offer is sent to— (a) the address given by the alleged offender in a request for recall under section 302C(1) of this Act of an earlier offer in the same matter; or (b) any address given by the alleged offender to the clerk of court specified in the offer, or to the procurator fiscal, in connection with the offer. (8B) For the purposes of section 141(4) of this Act, the accused shall be presumed to have received any citation effected at— (a) the address to which a conditional offer under subsection (1) above was sent provided it is proved that the accused received the offer; or (b) any address given by the accused to the clerk of court specified in the offer, or to the procurator fiscal, in connection with the offer.

,

• (i) in subsection (9), for the words “competently be tried before a district court” there is substituted “ be tried summarily ”.

• (2) After section 302 of that Act there is inserted—

(302A) (1) Where a procurator fiscal receives a report that a relevant offence has been committed he may send to the alleged offender a notice under this section (referred to in this section as a compensation offer); and where he issues a compensation offer the procurator fiscal shall notify the clerk of court specified in it of the issue of the offer and of its terms. (2) A compensation offer— (a) shall give such particulars of the circumstances alleged to constitute the offence to which it relates as are necessary for giving reasonable information about the alleged offence; (b) shall state— (i) the amount of compensation payable; (ii) if the compensation is to be payable by instalments, the amount of the instalments and the intervals at which they should be paid; (c) shall indicate that if, within 28 days of the date on which the offer was issued, or such longer period as may be specified in the offer, the alleged offender accepts the offer by making payment in respect of the offer to the clerk of court specified in the offer at the address therein mentioned, any liability to conviction of the offence shall be discharged; (d) shall indicate— (i) that the alleged offender may refuse the offer by giving notice to the clerk of court in the manner specified in the offer before the expiry of 28 days, or such longer period as may be specified in the offer, beginning on the day on which the offer is made; (ii) that unless the alleged offender gives such notice, the alleged offender will be deemed to have accepted the offer (even where no payment is made in respect of the offer); (iii) that where the alleged offender is deemed as described in sub-paragraph (ii) above to have accepted the offer any liability to conviction of the offence shall be discharged except where the offer is recalled under section 302C of this Act; (e) shall state that proceedings against the alleged offender shall not be commenced in respect of that offence until the end of a period of 28 days from the date on which the offer was made, or such longer period as may be specified in the offer; (f) shall state— (i) that the acceptance of the offer in the manner described in paragraph (c) above, or deemed acceptance of the offer as described in paragraph (d)(ii) above, shall not be a conviction nor be recorded as such; (ii) that the fact that the offer has been accepted, or deemed to have been accepted, may be disclosed to the court in any proceedings for an offence committed by the alleged offender within the period of two years beginning on the day of acceptance of the offer; (iii) that if the offer is not accepted, that fact may be disclosed to the court in any proceedings for the offence to which the offer relates; (g) shall state that refusal of an offer under paragraph (d)(i) above will be treated as a request by the alleged offender to be tried for the offence; and (h) shall explain the right to request a recall of the offer under section 302C of this Act. (3) A compensation offer may be made in respect of more than one relevant offence and shall, in such a case, state the amount payable in respect of the offer for all the offences in relation to which it is issued. (4) The clerk of court shall— (a) without delay, notify the procurator fiscal who issued the compensation offer when a notice as described in subsection (2)(d)(i) above has been received in respect of the offer; or (b) following the expiry of the period of 28 days referred to in subsection (2)(c) above or such longer period as may be specified in the offer, notify the procurator fiscal if no such notice has been received. (5) A compensation offer is accepted by the alleged offender making any payment in respect of the offer. (6) Where an alleged offender to whom a compensation offer is made does not give notice as described in subsection (2)(d)(i) above, the alleged offender is deemed to have accepted the offer. (7) Where— (a) an alleged offender accepts a compensation offer as described in subsection (5) above; or (b) an alleged offender is deemed to have accepted a compensation offer under subsection (6) above and the offer is not recalled, no proceedings shall be brought against the alleged offender for the offence. (8) The Scottish Ministers shall by order prescribe the maximum amount of a compensation offer; but that amount shall not exceed level 5 on the standard scale. (9) An order under subsection (8) above shall be made by statutory instrument; and any such instrument shall be subject to annulment in pursuance of a resolution of the Scottish Parliament. (10) The alleged offender shall be presumed to have received a compensation offer under subsection (1) above if the offer is sent to— (a) the address given by the alleged offender in a request for recall under section 302C(1) of this Act of an earlier offer in the same matter; or (b) any address given by the alleged offender to the clerk of court specified in the offer, or to the procurator fiscal, in connection with the offer. (11) For the purposes of section 141(4) of this Act, the accused shall be presumed to have received any citation effected at— (a) the address to which a compensation offer under subsection (1) above was sent provided it is proved that the accused received the offer; or (b) any address given by the accused to the clerk of court specified in the offer, or to the procurator fiscal, in connection with the offer. (12) The clerk of court shall account for the amount paid under a compensation offer to the person entitled thereto. (13) In this section, a “relevant offence” means any offence— (a) in respect of which an alleged offender could be tried summarily; and (b) on conviction of which it would be competent for the court to make a compensation order under section 249 of this Act. (302B) (1) The procurator fiscal may send to an alleged offender a notice under sections 302(1) and 302A(1) of this Act in respect of the same relevant offence (referred to in this section as a “combined offer”). (2) A combined offer shall be contained in the one notice. (3) In addition to the information required to be provided under sections 302(2) and 302A(2) of this Act, the combined offer shall state— (a) that the combined offer consists of both a fixed penalty offer and a compensation offer; (b) the whole amount of the combined offer; and (c) that liability to conviction of the offence shall not be discharged unless the whole of the combined offer is accepted. (4) Any acceptance or deemed acceptance of part of a combined offer shall be treated as applying to the whole of the offer. (302C) (1) Where an alleged offender is deemed to have accepted— (a) a fixed penalty offer by virtue of section 302(2)(ca)(ii) of this Act; or (b) a compensation offer by virtue of section 302A(2)(d)(ii) of this Act, the alleged offender may request that it be recalled. (2) A request for recall under subsection (1) above is valid only if— (a) the alleged offender claims that he— (i) did not receive the offer concerned; and (ii) would (if he had received it) have refused the offer; or (b) the alleged offender claims that— (i) although he received the offer concerned, it was not practicable by reason of exceptional circumstances for him to give notice of refusal of the offer; and (ii) he would (but for those circumstances) have refused the offer. (3) A request for recall of a fixed penalty offer or a compensation offer requires to be made— (a) to the clerk of court referred to in the offer; and (b) no later than 7 days after the expiry of the period specified in the offer for payment of the fixed penalty or compensation offer or, where a notice is sent in pursuance of section 303(1A)(a) of this Act, no later than 7 days after it is sent. (4) The clerk of court may, on cause shown by reference to subsection (2) above, consider a request for recall of such an offer despite its being made outwith the time limit applying by virtue of subsection (3)(b) above. (5) The clerk of court may, following receipt of such a request— (a) uphold the fixed penalty offer or compensation offer; or (b) recall it. (6) The alleged offender may, within 7 days of a decision under subsection (5)(a) above, apply to the court specified in the offer for a review of the decision (including as it involves a question which arose by reference to subsections (2) to (4) above). (7) In a review under subsection (6) above, the court may— (a) confirm or quash the decision of the clerk; (b) in either case, give such direction to the clerk as the court considers appropriate. (8) The decision of the court in a review under subsection (6) above shall be final. (9) The clerk of court shall, without delay, notify the procurator fiscal of— (a) a request for recall under subsection (1) above; (b) an application for review under subsection (6) above; (c) any decision under subsection (5) or (7) above. (10) For the purposes of this section, a certificate given by the procurator fiscal as to the date on which a fixed penalty offer or compensation order was sent shall be sufficient evidence of that fact.

.

• (3) In section 303 (fixed penalty: enforcement) of that Act—

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

(1) Subject to subsections (1A) and (2) below, where an alleged offender accepts a fixed penalty offer under section 302 of this Act or a compensation offer under section 302A of this Act, any amount of it which is outstanding at any time shall be treated as if the penalty or offer were a fine imposed by the court (the clerk of which is specified in the notice).

,

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

(1A) No action shall be taken to enforce a fixed penalty or compensation offer which an alleged offender is deemed to have accepted by virtue of section 302(2)(ca)(ii) or section 302A(2)(d)(ii) of this Act unless— (a) the alleged offender is sent a notice— (i) of the intention to take enforcement action; and (ii) which explains the right to request a recall of the penalty or offer under section 302C of this Act; (b) any request for recall made under that section has been finally disposed of.

,

• (c) in subsection (2), for the word “penalty” there is substituted “ fixed penalty or compensation offer ”,

• (d) in subsection (3), after the word “penalty” there is inserted “ or compensation offer ”.

Work orders

51

After section 303 of the 1995 Act there is inserted—

(303ZA) (1) Where a procurator fiscal receives a report that a relevant offence has been committed he may send the alleged offender a notice under this section (referred to in this section as a work offer) which offers the alleged offender the opportunity of performing unpaid work. (2) The total number of hours of unpaid work shall be not less than 10 nor more than 50. (3) A work offer— (a) shall give such particulars of the circumstances alleged to constitute the offence to which it relates as are necessary for giving reasonable information about the alleged offence; (b) shall state— (i) the number of hours of unpaid work which the alleged offender is required to perform; (ii) the date by which that work requires to be completed; (c) shall indicate that if the alleged offender— (i) accepts the work offer; and (ii) completes the work to the satisfaction of the supervising officer, any liability to conviction of the offence shall be discharged; (d) shall state that proceedings against the alleged offender shall not be commenced in respect of that offence until the end of a period of 28 days from the date on which the offer was issued, or such longer period as may be specified in the offer; (e) shall state— (i) that acceptance of a work offer in the manner described in subsection (5) below shall not be a conviction nor be recorded as such; (ii) that the fact that the offer has been accepted may be disclosed to the court in any proceedings for an offence committed by the alleged offender within the period of two years beginning on the day of acceptance of the offer; (iii) that if a work order made under subsection (6) below is not completed, that fact may be disclosed to the court in any proceedings for the offence to which the order relates. (4) A work offer may be made in respect of more than one relevant offence and shall, in such a case, state the total amount of work requiring to be performed in respect of the offences in relation to which it is made. (5) An alleged offender accepts a work offer by giving notice to the procurator fiscal specified in the order before the expiry of 28 days, or such longer period as may be specified in the offer, beginning on the day on which the offer is made. (6) If (and only if) the alleged offender accepts a work offer, the procurator fiscal may make an order (referred to in this section as a work order) against the alleged offender. (7) Notice of a work order— (a) shall be sent to the alleged offender as soon as reasonably practicable after acceptance of the work offer; and (b) shall contain— (i) the information mentioned in subsection (3)(b) above; and (ii) the name and contact details of the person who is to act as supervisor (“the supervising officer”) in relation to the alleged offender. (8) The procurator fiscal shall notify the local authority which will be responsible for supervision of an alleged offender of the terms of any work order sent to the alleged offender. (9) Where a work order is made, the supervising officer shall— (a) determine the nature of the work which the alleged offender requires to perform; (b) determine the times and places at which the alleged offender is to perform that work; (c) give directions to the alleged offender in relation to that work; (d) provide the procurator fiscal with such information as the procurator fiscal may require in relation to the alleged offender's conduct in connection with the requirements of the order. (10) In giving directions under subsection (9)(c) above, a supervising officer shall, so far as practicable, avoid— (a) any conflict with the alleged offender's religious beliefs; (b) any interference with the times at which the alleged offender normally— (i) works (or carries out voluntary work); or (ii) attends an educational establishment. (11) The supervising officer shall, on or as soon as practicable after the date referred to in subsection (3)(b)(ii) above, notify the procurator fiscal whether or not the work has been performed to the supervising officer's satisfaction. (12) Where an alleged offender completes the work specified in the work order to the satisfaction of the supervising officer, no proceedings shall be brought against the alleged offender for the offence. (13) The Scottish Ministers may, by regulations, make provision for the purposes of subsection (9) above (including, in particular, the kinds of activity of which the work requiring to be performed may (or may not) consist). (14) Regulations under subsection (13) above shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of the Scottish Parliament. (15) For the purposes of section 141(4) of this Act, the accused shall be presumed to have received any citation effected at— (a) the address to which a work offer was sent provided it is proved that the accused received the offer; or (b) any address given, in connection with the offer, by the accused to the procurator fiscal specified in the offer. (16) In this section, a “relevant offence” means any offence in respect of which an alleged offender could be tried summarily.

.

Setting aside of offers and orders

52

After section 303ZA (inserted by section 51 of this Act) of the 1995 Act there is inserted—

(303ZB) (1) Where this subsection applies, the procurator fiscal may set aside— (a) a fixed penalty offer made under section 302(1) of this Act; (b) a compensation offer made under section 302A(1) of this Act; (c) a work offer made under section 303ZA(1) of this Act; (d) a work order made under section 303ZA(6) of this Act. (2) Subsection (1) above applies where, on the basis of information which comes to the procurator fiscal's attention after the offer or (as the case may be) order has been made, the procurator fiscal considers that the offer or (as the case may be) order should not have been made in respect of the alleged offender. (3) The procurator fiscal may act under subsection (1)(a) to (c) above even where the offer has been accepted (including, in the case of an offer mentioned in subsection (1)(a) or (b) above, deemed to have been accepted). (4) Where the procurator fiscal acts under subsection (1) above, the procurator fiscal shall give the alleged offender notice— (a) of the setting aside of the offer or (as the case may be) order; and (b) indicating that any liability of the alleged offender to conviction of the alleged offence is discharged.

.

Disclosure of previous offers

53

• (1) In section 69 (notice of previous convictions) of the 1995 Act, after subsection (5) there is added—

(6) This section applies in relation to the alternative disposals mentioned in subsection (7) below as it applies in relation to previous convictions. (7) Those alternative disposals are— (a) a— (i) fixed penalty under section 302(1) of this Act; (ii) compensation offer under section 302A(1) of this Act, that has been accepted (or deemed to have been accepted) by the accused in the two years preceding the date of an offence charged; (b) a work order under section 303ZA(6) of this Act that has been completed in the two years preceding the date of an offence charged.

.

• (2) In section 101 (previous convictions: solemn proceedings) of that Act, after subsection (8) there is added—

(9) This section, except subsection (2) above, applies in relation to the alternative disposals mentioned in subsection (10) below as it applies in relation to previous convictions. (10) Those alternative disposals are— (a) a— (i) fixed penalty under section 302(1) of this Act; (ii) compensation offer under section 302A(1) of this Act, that has been accepted (or deemed to have been accepted) by the accused in the two years preceding the date of an offence charged; (b) a work order under section 303ZA(6) of this Act that has been completed in the two years preceding the date of an offence charged. (11) Nothing in this section or in section 69 of this Act shall prevent the prosecutor, following conviction of an accused of an offence— (a) to which a fixed penalty offer made under section 302(1) of this Act related; (b) to which a compensation offer made under section 302A(1) of this Act related; or (c) to which a work offer made under section 303ZA(1) of this Act related, providing the judge with information about the making of the offer (including the terms of the offer).

.

• (3) In section 166 (previous convictions: summary proceedings) of that Act, after subsection (8) there is added—

(9) This section, except subsection (8) above, applies in relation to the alternative disposals mentioned in subsection (10) below as it applies in relation to previous convictions. (10) Those alternative disposals are— (a) a— (i) fixed penalty under section 302(1) of this Act; (ii) compensation offer under section 302A(1) of this Act, that has been accepted (or deemed to have been accepted) by the accused in the two years preceding the date of an offence charged; (b) a work order under section 303ZA(6) of this Act that has been completed in the two years preceding the date of an offence charged. (11) Nothing in this section shall prevent the prosecutor, following conviction of an accused of an offence— (a) to which a fixed penalty offer made under section 302(1) of this Act related; (b) to which a compensation offer made under section 302A(1) of this Act related; or (c) to which a work offer made under section 303ZA(1) of this Act related, providing the judge with information about the making of the offer (including the terms of the offer).

.

Time bar where offer made

54

After section 136A of the 1995 Act (inserted by section 23 of this Act) there is inserted—