Criminal Justice and Licensing (Scotland) Act 2010

(19C) (1) Subsection (2) applies to— (a) relevant physical data taken or provided under section 18(2), 19(2)(a), 19A(2)(a) or 19AA(3)(a), (b) a sample, or any information derived from a sample, taken under section 18(6) or (6A), 19(2)(b) or (c), 19A(2)(b) or (c) or 19AA(3)(b) or (c), (c) relevant physical data or a sample taken from a person— (i) by virtue of any power of search, (ii) by virtue of any power to take possession of evidence where there is immediate danger of its being lost or destroyed, or (iii) under the authority of a warrant, (d) information derived from a sample falling within paragraph (c), and (e) relevant physical data, a sample or information derived from a sample taken from, or provided by, a person outwith Scotland which is given by any person to— (i) a police force, (ii) the Scottish Police Services Authority, or (iii) a person acting on behalf of a police force. (2) The relevant physical data, sample or information derived from a sample may be used— (a) for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, or (b) for the identification of a deceased person or a person from whom the relevant physical data or sample came. (3) Subsections (4) and (5) apply to relevant physical data, a sample or information derived from a sample falling within any of paragraphs (a) to (d) of subsection (1) (“relevant material”). (4) If the relevant material is held by a police force, the Scottish Police Services Authority or a person acting on behalf of a police force, the police force or, as the case may be, the Authority or person may give the relevant material to another person for use by that person in accordance with subsection (2). (5) A police force, the Scottish Police Services Authority or a person acting on behalf of a police force may, in using the relevant material in accordance with subsection (2), check it against other relevant physical data, samples and information derived from samples received from another person. (6) 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 Scotland 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 Scotland. (7) This section is without prejudice to any other power relating to the use of relevant physical data, samples or information derived from a sample.

.

• (2) In section 56 of the Criminal Justice (Scotland) Act 2003 (asp 7) (use of samples etc. voluntarily given)—

• (a) in subsection (1), after “from,” insert “ or provided by ”,

• (b) in subsection (2), for the words from “may” where it first occurs to the end substitute

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

,

• (c) in subsection (3), after “information” insert “ derived from a sample ”,

• (d) in subsection (5)(b), the words “with all information derived from them” are repealed,

• (e) in subsection (6)(a), for “it or them” substitute “ the sample ”,

• (f) in subsection (7)(a), the words “or relevant physical data”, in the second place where they occur, are repealed, and

• (g) after subsection (7) insert—

(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.

.

Referrals from the Scottish Criminal Cases Review Commission

Referrals from Scottish Criminal Cases Review Commission: grounds for appeal

83

In section 194D of the 1995 Act (further provisions as to references to the High Court by the Scottish Criminal Cases Review Commission), after subsection (4) insert—

(4A) The grounds for an appeal arising from a reference to the High Court under section 194B of this Act must relate to one or more of the reasons for making the reference contained in the Commission's statement of reasons. (4B) Despite subsection (4A), the High Court may, if it considers it is in the interests of justice to do so, grant leave for the appellant to found the appeal on additional grounds. (4C) An application by the appellant for leave under subsection (4B) must be made and intimated to the Crown Agent within 21 days after the date on which a copy of the Commission's statement of reasons is sent under subsection (4)(b). (4D) The High Court may, on cause shown, extend the period of 21 days mentioned in subsection (4C). (4E) The Clerk of Justiciary must intimate to the persons mentioned in subsection (4F)— (a) a decision under subsection (4B), and (b) in the case of a refusal to grant leave for the appeal to be founded on additional grounds, the reasons for the decision. (4F) Those persons are— (a) the appellant or the appellant's solicitor, and (b) the Crown Agent.

.

PART 4 — EVIDENCE

Admissibility of prior statements of witnesses: abolition of competence test

84

• (1) This section applies in relation to a prior statement made by a witness before the commencement of section 24 of the Vulnerable Witnesses (Scotland) Act 2004 (asp 3) (“the 2004 Act”) (which abolishes the competence test for witnesses in criminal and civil proceedings).

• (2) For the purpose of the application of subsection (2)(c) of section 260 of the 1995 Act (admissibility of prior statement depends on competence of the witness at the time of the statement) in relation to the statement, section 24 of the 2004 Act is taken to have been in force at the time the statement was made.

• (3) In this section, “prior statement” has the meaning it has in section 260 of the 1995 Act.

Witness statements: use during trial

85

• (1) The 1995 Act is amended as follows.

• (2) After section 261 insert—

(261A) (1) Subsection (2) applies where— (a) a witness is giving evidence in criminal proceedings, (b) the witness has made a prior statement, (c) the prosecutor has seen or has been given an opportunity to see the statement, and (d) the accused (or a solicitor or advocate acting on behalf of the accused in the proceedings) has seen or has been given an opportunity to see the statement. (2) The court may allow the witness to refer to the statement while the witness is giving evidence.

.

• (3) In section 262 (construction of sections 259 to 261 of Act)—

• (a) in the title, for “261” substitute “ 261A ”,

• (b) in each of subsections (1) to (4), for “261” substitute “ 261A ”, and

• (c) in subsection (3)—

• (i) in the definition of “criminal proceedings”, after “include” insert “ (other than in section 261A) ”, and

• (ii) in the definition of “made”, after “includes” insert “ (other than in section 261A) ”.

Spouse or civil partner of accused a compellable witness

86

• (1) For section 264 of the 1995 Act (spouse of accused a competent witness) substitute—

(264) (1) The spouse or civil partner of an accused is a competent and compellable witness for the prosecution, the accused or any co-accused in the proceedings against the accused. (2) Subsection (1) is, if the spouse or civil partner is a co-accused in the proceedings, subject to any enactment or rule of law by virtue of which an accused need not (by reason of being an accused) give evidence in the proceedings. (3) Subsection (1) displaces any other rule of law that would (but for that subsection) prevent or restrict, by reference to the relationship, the giving of evidence by the spouse or civil partner of an accused.

.

• (2) Section 130 of the Civil Partnership Act 2004 (c.33) (civil partner of accused a competent witness) is repealed.

Special measures for child witnesses and other vulnerable witnesses

87

• (1) The 1995 Act is amended as follows.

• (2) In section 271 (vulnerable witnesses: main definitions)—

• (a) in subsection (1)—

• (i) for “a trial” substitute “ a hearing in relevant criminal proceedings ”, and

• (ii) for “the trial”, wherever it occurs, substitute “ the hearing ”, and

• (b) in subsection (5)—

• (i) the definition of “trial” is repealed, and

• (ii) after the definition of “court” insert—

“hearing in relevant criminal proceedings” means any hearing in the course of any criminal proceedings in the High Court or the sheriff court.

.

• (3) In section 271A (child witnesses)—

• (a) in subsection (1), for “a trial” substitute “ a hearing in relevant criminal proceedings ”,

• (b) in subsection (5A)(c), for “the trial diet” substitute “ the hearing at which the evidence is to be given ”,

• (c) in subsection (6)(a), for “the trial” substitute “ a hearing in relevant criminal proceedings ”,

• (d) in subsection (7)(b)(ii), for “the trial” substitute “ the hearing at which the evidence is to be given ”,

• (e) in subsection (8), for “the trial diet” substitute “ the hearing at which the evidence is to be given ”,

• (f) in subsection (10)(b)(i), for “the trial diet” substitute “ the hearing at which the evidence is to be given ”,

• (g) in subsection (12), for “the trial diet in the case” substitute “ the hearing at which the evidence is to be given ”, and

• (h) in subsection (13A)(c), for “the trial diet” substitute “ the hearing at which the evidence is to be given ”.

• (4) In section 271B (further special provision for child witnesses under the age of 12)—

• (a) in subsection (1)(a), for “a trial” substitute “ a hearing in relevant criminal proceedings ”,

• (b) in subsection (1)(b), for “the trial” substitute “ the hearing ”, and

• (c) in subsection (3)(b)(i), for “the trial” substitute “ the hearing ”.

• (5) In section 271C (vulnerable witnesses other than child witnesses)—

• (a) in subsection (1), for “a trial” substitute “ a hearing in relevant criminal proceedings ”,

• (b) in subsection (5A)(c), for “the trial diet” substitute “ the hearing at which the evidence is to be given ”,

• (c) in subsection (6), for “the trial diet” substitute “ the hearing at which the evidence is to be given ”,

• (d) in subsection (10), for “the trial diet in the case” substitute “ the hearing at which the evidence is to be given ”, and

• (e) in subsection (12)(c), for “the trial diet” substitute “ the hearing at which the evidence is to be given ”.

• (6) In section 271D (review of arrangements for vulnerable witnesses)—

• (a) in subsection (1)—

• (i) for “the trial”, where it first occurs, substitute “ a hearing in relevant criminal proceedings ”, and

• (ii) for “the trial”, where it second occurs, substitute “ the hearing ”, and

• (b) in subsection (4)(b)(i), for “the trial” substitute “ the hearing ”.

• (7) In section 271F (the accused)—

• (a) in subsection (1)—

• (i) for “the trial”, where it first occurs, substitute “ a hearing in relevant criminal proceedings ”, and

• (ii) for “the trial”, where it second occurs (in subsection (1)(a)), substitute “ the hearing ”,

• (b) in subsection (2)—

• (i) for “the trial”, where it first occurs, substitute “ the hearing ”,

• (ii) for “the trial”, where it second occurs (in subsection (2)(a)(iii)), substitute “ a hearing in relevant criminal proceedings ”, and

• (iii) for “the trial”, where it third occurs (in subsection (2)(b)(i)), substitute “ a hearing in relevant criminal proceedings ”,

• (c) in subsection (3), for “the trial” substitute “ a hearing in relevant criminal proceedings ”, and

• (d) in subsection (5), for “the trial” substitute “ the hearing ”.

• (8) In section 271J (live television link)—

• (a) in subsection (1), for “the trial” substitute “ the hearing ”,

• (b) in subsection (2)(b), for “the trial” substitute “ the hearing ”, and

• (c) in subsection (5)(a), for “the trial” substitute “ the hearing ”.

• (9) In section 271L (supporters), in subsection (2), for “the trial” substitute “ that or any other hearing in the proceedings ”.

• (10) In section 288E (prohibition of personal conduct of defence in certain cases involving child witnesses under the age of 12), in subsection (5), for “a child witness referred to in subsection (2)(b) above” substitute “ the trial ”.

Child witnesses in proceedings for people trafficking offences

88

In section 271 of the 1995 Act (vulnerable witnesses: main definitions)—

• (a) in subsection (1)(a), for “age of 16” substitute “ relevant age ”, and

• (b) after subsection (1), insert—

(1A) In subsection (1)(a), “the relevant age” means— (a) in the case of a person who is giving or is to give evidence in proceedings for an offence under section 22 of the Criminal Justice (Scotland) Act 2003 (asp 7) (trafficking in prostitution etc.) or section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c.19) (trafficking people for exploitation), the age of 18, and (b) in any other case, the age of 16.

.

Amendment of Criminal Justice (Scotland) Act 2003

89

Section 15A of the Criminal Justice (Scotland) Act 2003 (asp 7) (application of certain vulnerable witness provisions in proofs) is repealed.

Witness anonymity orders

90

• (1) After section 271M of the 1995 Act insert—

(271N) (1) A court may make an order requiring such specified measures to be taken in relation to a witness in criminal proceedings as the court considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings. (2) The court may make such an order only on an application made in accordance with sections 271P and 271Q, if satisfied of the conditions set out in section 271R having considered the matters set out in section 271S. (3) The kinds of measures that may be required to be taken in relation to a witness include in particular measures for securing one or more of the matters mentioned in subsection (4). (4) Those matters are— (a) that the witness's name and other identifying details may be— (i) withheld, (ii) removed from materials disclosed to any party to the proceedings, (b) that the witness may use a pseudonym, (c) that the witness is not asked questions of any specified description that might lead to the identification of the witness, (d) that the witness is screened to any specified extent, (e) that the witness's voice is subjected to modulation to any specified extent. (5) Nothing in this section authorises the court to require— (a) the witness to be screened to such an extent that the witness cannot be seen by the judge or the jury, (b) the witness's voice to be modulated to such an extent that the witness's natural voice cannot be heard by the judge or the jury. (6) An order made under this section is referred to in this Act as a “witness anonymity order”. (7) In this section “specified” means specified in the order concerned. (271P) (1) An application for a witness anonymity order to be made in relation to a witness in criminal proceedings may be made to the court by the prosecutor or the accused. (2) Where an application is made by the prosecutor, the prosecutor— (a) must (unless the court directs otherwise) inform the court of the identity of the witness, but (b) is not required to disclose in connection with the application— (i) the identity of the witness, or (ii) any information that might enable the witness to be identified, to any other party to the proceedings (or to the legal representatives of any other party to the proceedings). (3) Where an application is made by the accused, the accused— (a) must inform the court and the prosecutor of the identity of the witness, but (b) if there is more than one accused, is not required to disclose in connection with the application— (i) the identity of the witness, or (ii) any information that might enable the witness to be identified, to any other accused (or to the legal representatives of any other accused). (4) Subsections (5) and (6) apply where the prosecutor or the accused proposes to make an application under this section in respect of a witness. (5) Any relevant information which is disclosed by or on behalf of that party before the determination of the application must be disclosed in such a way as to prevent— (a) the identity of the witness, or (b) any information that might enable the witness to be identified, from being disclosed except as required by subsection (2)(a) or (3)(a). (6) Despite any provision in this Act to the contrary, any relevant list, application or notice lodged, made or given by that party before the determination of the application must not— (a) disclose the identity of the witness, or (b) contain any other information that might enable the witness to be identified, but the list, application or notice must, instead, refer to the witness by a pseudonym. (7) “Relevant information” means any document or other material which falls to be disclosed, or is sought to be relied on, by or on behalf of the party concerned in connection with the proceedings or proceedings preliminary to them. (8) “Relevant list, application or notice” means— (a) a list of witnesses, (b) a list of productions, (c) a notice under section 67(5) or 78(4) relating to the witness, (d) a motion or application under section 268, 269 or 270 relating to the witness, (e) any other motion, application or notice relating to the witness. (9) The court must give every party to the proceedings the opportunity to be heard on an application under this section. (10) Subsection (9) does not prevent the court from hearing one or more of the parties to the proceedings in the absence of an accused and the accused's legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case. (11) Nothing in this section is to be taken as restricting any power to make rules of court. (271Q) (1) In proceedings on indictment, an application under section 271P is a preliminary issue (and sections 79 and 87A and other provisions relating to preliminary issues apply accordingly). (2) No application under section 271P may be made in summary proceedings by any party unless notice of the party's intention to do so has been given— (a) if an intermediate diet has been fixed, before that diet, (b) if no intermediate diet has been fixed, before the commencement of the trial. (3) Subsection (2) is subject to subsections (4) and (8). (4) In summary proceedings in which an intermediate diet has been fixed, the court may, on cause shown, grant leave for an application under section 271P to be made without notice having been given in accordance with subsection (2)(a). (5) Subsection (6) applies where— (a) the court grants leave for a party to make an application under section 271P without notice having been given in accordance with subsection (2)(a), or (b) notice of a party's intention to make such an application is given in accordance with subsection (2)(b). (6) The application must be disposed of before the commencement of the trial. (7) Subsection (8) applies where a motion or application is made under section 268, 269 or 270 to lead the evidence of a witness. (8) Despite section 79(1) and subsection (2) above, an application under section 271P may be made in respect of the witness at the same time as the motion or application under section 268, 269 or 270 is made. (9) The application must be determined by the court before continuing with the trial. (10) Where an application is made under section 271P, the court may postpone or adjourn (or further adjourn) the trial diet. (11) In this section, “commencement of the trial” means the time when the first witness for the prosecution is sworn. (271R) (1) This section applies where an application is made for a witness anonymity order to be made in relation to a witness in criminal proceedings. (2) The court may make the order only if it is satisfied that Conditions A to D below are met. (3) Condition A is that the proposed order is necessary— (a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities or otherwise). (4) Condition B is that, having regard to all the circumstances, the effect of the proposed order would be consistent with the accused's receiving a fair trial. (5) Condition C is that the importance of the witness's testimony is such that in the interests of justice the witness ought to testify. (6) Condition D is that— (a) the witness would not testify if the proposed order were not made, or (b) there would be real harm to the public interest if the witness were to testify without the proposed order being made. (7) In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court must have regard in particular to any reasonable fear on the part of the witness— (a) that the witness or another person would suffer death or injury, or (b) that there would be serious damage to property, if the witness were to be identified. (271S) (1) When deciding whether Conditions A to D in section 271R are met in the case of an application for a witness anonymity order, the court must have regard to— (a) the considerations mentioned in subsection (2), and (b) such other matters as the court considers relevant. (2) The considerations are— (a) the general right of an accused in criminal proceedings to know the identity of a witness in the proceedings, (b) the extent to which the credibility of the witness concerned would be a relevant factor when the witness's evidence comes to be assessed, (c) whether evidence given by the witness might be material in implicating the accused, (d) whether the witness's evidence could be properly tested (whether on grounds of credibility or otherwise) without the witness's identity being disclosed, (e) whether there is any reason to believe that the witness— (i) has a tendency to be dishonest, or (ii) has any motive to be dishonest in the circumstances of the case, having regard in particular to any previous convictions of the witness and to any relationship between the witness and the accused or any associates of the accused, (f) whether it would be reasonably practicable to protect the witness's identity by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court. (271T) (1) Subsection (2) applies where, in a trial on indictment, any evidence has been given by a witness at a time when a witness anonymity order applied to the witness. (2) The judge must give the jury such direction as the judge considers appropriate to ensure that the fact that the order was made in relation to the witness does not prejudice the accused. (271U) (1) This section applies where a court has made a witness anonymity order in relation to any criminal proceedings. (2) The court may discharge or vary (or further vary) the order if it appears to the court to be appropriate to do so in view of the provisions of sections 271R and 271S that applied to the making of the order. (3) The court may do so— (a) on an application made by a party to the proceedings if there has been a material change of circumstances since the relevant time, or (b) on its own initiative. (4) The court must give every party to the proceedings the opportunity to be heard— (a) before determining an application made to it under subsection (3)(a), and (b) before discharging or varying the order on its own initiative. (5) Subsection (4) does not prevent the court from hearing one or more of the parties to the proceedings in the absence of an accused and the accused's legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case. (6) In subsection (3)(a) “the relevant time” means— (a) the time when the order was made, or (b) if a previous application has been made under that subsection, the time when the application (or the last application) was made. (271V) (1) The prosecutor or the accused may appeal to the High Court against— (a) the making of a witness anonymity order under section 271N, (b) the kinds of measures that are required to be taken in relation to a witness under a witness anonymity order made under that section, (c) the refusal to make a witness anonymity order under that section, (d) the discharge of a witness anonymity order under section 271U, (e) the variation of a witness anonymity order under that section, or (f) the refusal to discharge or vary a witness anonymity order under that section. (2) The appeal may be brought only with the leave of the court of first instance, granted— (a) on the motion of the party making the appeal, or (b) on its own initiative. (3) The procedure in relation to the appeal is to be prescribed by Act of Adjournal. (4) If an appeal is brought under this section— (a) the period between the lodging of the appeal and its determination does not count towards any time limit applying in respect of the case, (b) the court of first instance or the High Court may do either or both of the following— (i) postpone or adjourn (or further adjourn) the trial diet, (ii) extend any time limit applying in respect of the case. (5) An appeal under this section does not affect any right of appeal in relation to any other decision of any court in the criminal proceedings. (271W) (1) This section applies where— (a) an appeal is brought under section 271V(1)(a) against the making of a witness anonymity order, and (b) the High Court determines that the decision of the judge at first instance was wrong in law. (2) The High Court must discharge the order and the trial is to proceed as if the order had not been made. (271X) (1) This section applies where— (a) an appeal is brought under section 271V(1)(c) against the refusal to make a witness anonymity order in relation to a witness in criminal proceedings, and (b) the High Court determines that the decision of the judge at first instance was wrong in law. (2) The High Court must make an order requiring such specified measures to be taken in relation to the witness in the proceedings as the court considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings. (271Y) (1) This section applies where— (a) an appeal is brought under section 271V(1)(e) against a variation of a witness anonymity order, and (b) the High Court determines that the decision of the judge at first instance was wrong in law. (2) The High Court must discharge the variation. (3) If the High Court determines that it is appropriate to make an additional variation in view of the provisions of sections 271R and 271S, the court may do so. (271Z) (1) This section applies where— (a) an appeal is brought under section 271V(1)(f) against a refusal to discharge or vary a witness anonymity order, and (b) the High Court determines that the decision of the judge at first instance was wrong in law. (2) The High Court must discharge the order, or make the variation, as the case requires. (3) If, in the case of a variation, the High Court determines that it is appropriate to make an additional variation in view of the provisions of sections 271R and 271S, the court may do so.

.

• (2) The 1995 Act is amended as follows—

• (a) in section 79 (preliminary pleas and preliminary issues)—

• (i) after subsection (1), insert—

(1A) Subsection (1) is subject to section 271Q(8).

, and

• (ii) in subsection (2)(b), after sub-paragraph (ii), insert—

(iia) an application for a witness anonymity order under section 271P of this Act;

, and

• (b) in section 148 (intermediate diets), after subsection (3), insert—

(3AA) At an intermediate diet, the court shall also dispose of any application for a witness anonymity order under section 271P of this Act of which notice has been given in accordance with section 271Q(2)(a) of this Act.

.

• (3) Sections 271N to 271Z of the 1995 Act apply to proceedings in cases where the trial or hearing begins on or after the day on which this section comes into force.

• (4) Nothing in this section or sections 271N to 271Z of the 1995 Act affects the power of a court under any rule of law to make an order for securing that the identity of a witness in a trial or hearing in criminal proceedings is withheld from the accused (or, on a defence application, from other accused), where the trial or hearing begins before the day on which this section comes into force.

• (5) Schedule 5 makes provision about certain appeals.

Television link evidence

91

• (1) The 1995 Act is amended as follows.

• (2) In section 273 (television link evidence from abroad), in subsection (1), for “solemn” substitute “ criminal ”.

• (3) After that section insert—

(273A) (1) In any criminal proceedings in the High Court or the sheriff court a person other than the accused may give evidence through a live television link if— (a) the witness is within the United Kingdom but outside Scotland, (b) an application under this section for the issue of a letter of request has been granted, and (c) the court is satisfied as to the arrangements for the giving of evidence in that manner by that witness. (2) The prosecutor or the defence in any proceedings referred to in subsection (1) may apply for the issue of a letter of request. (3) The application must be made to a judge of the court in which the trial is to take place or, if that court is not yet known, to a judge of the High Court. (4) The judge may, on an application under this section, issue a letter to a court or tribunal exercising jurisdiction in the place where the witness is ordinarily resident requesting assistance in facilitating the giving of evidence by that witness through a live television link, if the judge is satisfied of the matters set out in subsection (5). (5) Those matters are— (a) that the evidence which it is averred the witness is able to give is necessary for the proper adjudication of the trial, (b) that the granting of the application— (i) is in the interests of justice, and (ii) in the case of an application by the prosecutor, is not unfair to the accused.

.

European evidence warrants

92

• (1) The Scottish Ministers may by order make provision for the purposes of and in connection with implementing any obligations of the United Kingdom created by or arising under the Framework Decision (so far as they have effect in or as regards Scotland).

• (2) The provision may, in particular, confer functions—

• (a) on the Scottish Ministers,

• (b) on the Lord Advocate,

• (c) on other persons.

• (3) An order under subsection (1) may modify any enactment.

• (4) An order under subsection (1) may contain provision creating offences and a person who commits such an offence is liable to such penalties, not exceeding those mentioned in subsection (5), as are provided for in the order.

• (5) Those penalties are—

• (a) on conviction on indictment, imprisonment for a period not exceeding 2 years, or a fine, or both,

• (b) on summary conviction, imprisonment for a period not exceeding 12 months, or a fine not exceeding the statutory maximum, or both.

• (6) In this section, the “Framework Decision” means Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.

PART 5 — CRIMINAL JUSTICE

Jury service

Lists of jurors

93

• (1) The 1995 Act is amended as follows.

• (2) In section 84 (juries: returns of jurors and preparation of lists)—

• (a) in subsection (3), for “list” substitute “ lists ”,

• (b) for subsection (4) substitute—

(4) For the purpose of a trial in the sheriff court, the sheriff principal must furnish the clerk of court with a list of names, containing the number of persons required, from lists of potential jurors of— (a) the sheriff court district in which the trial is to be held (the “local district”), and (b) if the sheriff principal considers it appropriate, any other sheriff court district or districts in the sheriffdom in which the trial is to be held (“other districts”). (4A) Where the sheriff principal furnishes a list containing names of potential jurors of other districts, the sheriff principal may determine the proportion as between the local district and the other districts in which jurors are to be summoned.

,

• (c) in subsection (5), for “list”, in both places where it occurs, substitute “ lists ”, and

• (d) subsection (7) is repealed.

• (3) In section 85(4) (juries: citation and attendance of jurors)—

• (a) for the words from the beginning to “shall”, in the first place where it occurs, substitute

The sheriff clerk of— (a) the sheriffdom in which the High Court is to sit, or (b) the sheriff court district in which a trial in the sheriff court is to be held, shall

, and

• (b) the word “such”, in the first place where it occurs, is repealed.

Upper age limit for jurors

94

• (1) Section 1 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c.55) (qualification of jurors) is amended as follows.

• (2) In subsection (1)—

• (a) in paragraph (b), at beginning insert “ subject to subsection (1A), ”, and

• (b) the words “, civil or criminal” are repealed.

• (3) After subsection (1) insert—

(1A) In relation to criminal proceedings, a person is qualified and liable to serve as a juror despite being over 65 years of age.

.

Excusal from jury service

95

• (1) The Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 is amended as follows.

• (2) In section 1 (qualification of jurors)—

• (a) in subsection (1), after “below” insert “ and to section 1A ”,

• (b) in subsection (2), after “service” in the second place where it occurs insert “ in relation to civil proceedings ”,

• (c) in subsection (3), after “service” in the first place where it occurs insert “ in relation to civil proceedings ”,

• (d) in subsection (5), after “above” insert “ or under section 1A ”, and

• (e) in subsection (6), after paragraph (a) insert—

(aa) section 1A;

.

• (3) After section 1 insert—

(1A) (1) Subject to subsection (3), a person who is qualified under section 1(1) but is among the persons listed in Part III of Schedule 1 to this Act (being persons excusable as of right from jury service) is to be excused from jury service in relation to criminal proceedings on any occasion where the person— (a) has been required to provide information under section 3(2) of the Jurors (Scotland) Act 1825 (c.22); and (b) gives written notice to the sheriff principal that the person wishes to be excused, before the end of the period of 7 days beginning with the day on which the person receives the requirement. (2) Without prejudice to subsection (1), a person who is qualified under section 1(1) but is among the persons listed in Group C of Part III of Schedule 1 to this Act is to be excused from jury service in relation to criminal proceedings on any occasion where— (a) the person has been required to provide information under section 3(2) of the Jurors (Scotland) Act 1825; and (b) the person's commanding officer certifies to the sheriff principal that it would be prejudicial to the efficiency of the force of which the person is a member were the person required to be absent from duty. (3) Subsection (1) does not apply to a person who is qualified under section 1(1) but is among the persons listed in paragraph (a)(iii) of Group F of Part III of Schedule 1 to this Act (persons who have attained the age of 71), but instead such a person is to be excused from jury service in relation to criminal proceedings on any occasion where— (a) in the case of a person who has been required to provide information under section 3(2) of the Jurors (Scotland) Act 1825, the person gives written notice to the sheriff principal that the person wishes to be excused; or (b) in the case of a person who has been cited to attend for jury service, the person— (i) gives written notice to the clerk of court issuing the citation that the person wishes to be excused, before the date on which the person is cited first to attend; or (ii) attends in compliance with the citation and intimates to the court that the person wishes to be excused.

.

• (4) In section 3(1)(a) (offences in connection with jury service), after “been” insert “ required to provide information under section 3(2) of the Jurors (Scotland) Act 1825 or ”.

Persons excusable from jury service

96

In the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c.55), in Schedule 1 (ineligibility for and disqualification and excusal from jury service), Part 3, Group F, for paragraph (a) substitute—

(a) where citation for jury service would result in a person's serving as a juror in relation to criminal proceedings— (i) persons who have served as a juror in the period of 5 years ending with the date on which the person is cited first to attend; (ii) persons who have attended for jury service in relation to criminal proceedings, but have not served as a juror, in the period of 2 years ending with the date on which the person is cited first to attend; and (iii) persons who have attained the age of 71; (aa) where citation for jury service would result in a person's serving as a juror in relation to civil proceedings, persons who have served, or duly attended for service, as a juror in the period of 5 years ending with the date on which the person is cited first to attend;

.

Data matching for detection of fraud etc.

Data matching for detection of fraud etc.

97

• (1) The Public Finance and Accountability (Scotland) Act 2000 (asp 1) is amended as follows.

• (2) In section 11 (Audit Scotland: financial provisions)—

• (a) after subsection (1)(c) insert—

(ca) carrying out a data matching exercise under section 26A,

, and

• (b) after subsection (5) insert—

(5A) Charges under subsection (1)(ca) may be imposed on (either or both)— (a) persons who disclose data for a data matching exercise, (b) persons who receive the results of such an exercise.

.

• (3) After section 26 insert—

(26A) (1) Audit Scotland may carry out data matching exercises or arrange for them to be carried out on its behalf. (2) A data matching exercise is an exercise involving the comparison of sets of data to determine how far they match (including the identification of any patterns and trends). (3) The power in subsection (1) may be exercised for one or more of the following purposes— (a) assisting in the prevention and detection of fraud, (b) assisting in the prevention and detection of crime (other than fraud), (c) assisting in the apprehension and prosecution of offenders. (4) A data matching exercise may not be used for the sole purpose of identifying patterns and trends in a person's characteristics or behaviour which suggest the person is likely to commit fraud in the future. (26B) (1) For the purposes of a data matching exercise, any person may disclose data to Audit Scotland (or a person acting on its behalf). (2) Such disclosure does not breach— (a) any duty of confidentiality owed by the person making the disclosure, or (b) any other restriction on the disclosure of data. (3) Nothing in this section authorises a disclosure— (a) which contravenes the Data Protection Act 1998 (c.29), (b) which is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000 (c.23) (interception, acquisition and disclosure of communications data), or (c) of data comprising or including patient data. (4) “Patient data” means data relating to an individual which is held for medical purposes and from which the individual can be identified. (5) “Medical purposes” are the purposes of— (a) preventative medicine, (b) medical diagnosis, (c) medical research, (d) the provision of care and treatment, (e) the management of health and social care services, and (f) informing individuals about their physical or mental health or condition, the diagnosis of their condition or their care and treatment. (6) Nothing in this section prevents disclosure of data under any other provision of this Act, another enactment or any rule of law. (7) Data matching exercises may include data disclosed by a person outside Scotland. (26C) (1) Audit Scotland may require the persons mentioned in subsection (2) to disclose to it (or a person acting on its behalf) such data as it (or the person acting on its behalf) may reasonably require for the purpose of carrying out data matching exercises in such form as it (or such person) may so require. (2) Those persons are— (a) a body or an office holder any of whose accounts is an account in relation to which sections 21 and 22 apply, (b) a body whose accounts must be audited under Part 7 of the Local Government (Scotland) Act 1973 (c.65) (finance), (c) a Licensing Board continued in existence by or established under section 5 of the Licensing (Scotland) Act 2005 (asp 16), or (d) an officer or a member of a body, office holder or board mentioned in paragraph (a), (b) or (c). (3) Audit Scotland must not require a person to disclose data if— (a) the disclosure would contravene the Data Protection Act 1998 (c.29), (b) the disclosure is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000 (c.23) (interception, acquisition and disclosure of communications data). (4) A disclosure made in response to a requirement imposed under subsection (1) does not breach— (a) any duty of confidentiality owed by the person making the disclosure, or (b) any other restriction on the disclosure of data. (5) A person mentioned in subsection (2) who without reasonable excuse fails to comply with a requirement made in accordance with this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. (26D) (1) This section applies to the following data— (a) data relating to a particular person obtained by or on behalf of Audit Scotland for the purpose of carrying out a data matching exercise, and (b) the results of such an exercise. (2) Data to which this section applies may be disclosed by or on behalf of Audit Scotland if the disclosure is— (a) for, or in connection with, a purpose for which a data matching exercise is carried out, (b) to a Scottish audit agency, or a related party, for, or in connection with a function of that audit agency under— (i) Part 2 of this Act, or (ii) Part 7 of the Local Government (Scotland) Act 1973 (c.65) (finance), (c) to a United Kingdom audit agency, or a related party, for, or in connection with, a function of that audit agency corresponding or similar to— (i) the functions of a Scottish audit agency, or (ii) the functions of Audit Scotland under this Part, or (d) in pursuance of a duty imposed by or under an enactment. (3) “Scottish audit agency”, for the purpose of subsections (2)(b) and (c)(i), means— (a) the Auditor General, or (b) the Accounts Commission. (4) “United Kingdom audit agency”, for the purposes of subsection (2)(c), means— (a) the National Audit Office, (b) the Audit Commission for Local Authorities and the National Health Service in England, (c) the Auditor General for Wales, (d) the Comptroller and Auditor General for Northern Ireland, or (e) a person designated as a local government auditor under article 4 of the Local Government (Northern Ireland) Order 2005 (S.I. 2005/1968 (NI.18)). (5) “Related party”, in relation to a Scottish or United Kingdom audit agency means— (a) a person acting on its behalf, (b) a body or office holder whose accounts are required to be audited by it or by a person appointed by it, or (c) a person appointed by it to audit those accounts. (6) If the data used for a data matching exercise includes patient data— (a) subsection (2)(a) applies only so far as the purpose for which the disclosure is made relates to a relevant NHS body, and (b) subsection (2)(b) or (c) applies only so far as the function for, or in connection with, which the disclosure is made relates to such a body. (7) In subsection (6)— - “patient data” has the same meaning as section 26B(4), and - “relevant NHS body” means— 1. an NHS body as defined in section 22(1) of the Community Care and Health (Scotland) Act 2002 (asp 5), 2. a health service body as defined in section 53(1) of the Audit Commission Act 1998 (c.18), 3. a Welsh NHS body as defined in section 60 of the Public Audit (Wales) Act 2004 (c.23), 4. a (8) Data disclosed under subsection (2) may not be further disclosed except— (a) for, or in connection with— (i) the purpose for which it was disclosed under subsection (2)(a), or (ii) the function for which it was disclosed under subsection (2)(b) or (c), (b) otherwise for the investigation or prosecution of an offence, or (c) in pursuance of a duty imposed by or under an enactment. (9) Except as authorised by subsections (2) and (8), a person who discloses data to which this section applies is guilty of an offence and liable— (a) on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine or to both, or (b) on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both. (26E) (1) Audit Scotland may publish a report on a data matching exercise (including a report on the results of an exercise). (2) Such a report must not include data relating to a particular person if— (a) the person is the subject of any data included in the data matching exercise, (b) the person can be identified from the data, and (c) the data is not otherwise in the public domain. (3) A report published under subsection (1) is to be published in such manner as Audit Scotland considers appropriate for the purposes of bringing it to the attention of those members of the public who may be interested. (4) Nothing in section 26D prevents publication under this section. (5) This section does not affect any powers of an auditor where the data matching exercise in question forms part of an audit under— (a) Part 2 of this Act, or (b) Part 7 of the Local Government (Scotland) Act 1973 (c.65) (finance). (26F) (1) Audit Scotland must prepare, and keep under review, a code of practice with respect to data matching exercises. (2) Regard must be had to the code in carrying out and participating in any such exercise. (3) Audit Scotland must consult the following persons before preparing or altering the code of practice— (a) the Information Commissioner, (b) the persons mentioned in section 26C(2), and (c) any other person Audit Scotland thinks fit. (4) Audit Scotland must, from time to time, publish the code. (26G) (1) The Scottish Ministers may by order amend this Part— (a) to add a public body to the persons mentioned in section 26C(2), (b) to modify the application of this Part in relation to a public body so added, or (c) to remove a person from the persons mentioned in section 26C(2). (2) An order under this section may include such incidental, consequential, supplementary or transitional provision as the Scottish Ministers think fit. (3) In this section, “public body” means a person whose functions— (a) are functions of a public nature, or (b) include functions of a public nature. (4) A person referred to in subsection (3)(b) is a public body to the extent only of the functions referred to in that subsection.

.

Sharing information with anti-fraud organisations

Sharing information with anti-fraud organisations

98

In the Serious Crime Act 2007 (c.27), the following provisions are repealed—

• (a) in section 68 (disclosure of information to prevent fraud), subsections (5) and (6),

• (b) in section 69 (offence for certain further disclosures of information), subsection (3), and

• (c) in section 71 (code of practice for disclosure of information to prevent fraud)—

• (i) subsection (4), and

• (ii) in subsection (6), the definition of “relevant public authority”.

Closure of premises associated with human exploitation etc.

Closure of premises associated with human exploitation etc.

99

• (1) In section 26 of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) (authorisation of closure notice)—

• (a) in subsection (1), for “and (3)” substitute “ to (3B) ”,

• (b) in subsection (3), after “may” insert “ , in a case involving antisocial behaviour, ”, and

• (c) after subsection (3) insert—

(3A) A senior police officer may, in a case involving an exploitation offence, authorise the service of a closure notice only where the senior police officer— (a) has reasonable grounds for believing that— (i) such an offence is being (or, at any time in the immediately preceding 3 months, was) committed in the premises, or (ii) the premises are being (or, at any time in the immediately preceding 3 months, have been) used for or in connection with the commission of such an offence, and (b) is satisfied that— (i) the local authority for the area in which the premises are situated has been consulted, and (ii) reasonable steps have been taken to establish the identity of any person who lives on, has control of, has responsibility for or has an interest in the premises. (3B) Subsection (3A) is without prejudice to subsection (3) (including in so far as subsection (3) is applicable in relation to a brothel or other place where prostitution may occur).

.

• (2) In section 27 of that Act (service etc.), in subsection (2)—

• (a) in paragraph (b)(i), after “section 26(3)(b)(ii)” insert “ or (as the case may be) (3A)(b)(ii) ”, and

• (b) in paragraph (b)(ii), for “in that subsection” substitute “ there ”.

• (3) In section 30 of that Act (application: determination)—

• (a) in subsection (1), after “subsection (2)” insert “ or (2A) ”,

• (b) in subsection (2), for “Those” substitute “ Where the application is in a case involving antisocial behaviour, the ”,

• (c) after subsection (2) insert—

(2A) Where the application is in a case involving an exploitation offence, the conditions are— (a) that it appears that— (i) such an offence is being (or was recently) committed in the premises, or (ii) the premises continue to be (or recently have been) used for or in connection with the commission of such an offence, and (b) that the making of the order is necessary to prevent the commission of such an offence for the period specified in the order.

,

• (d) in subsection (3)(b), for the words from “engaged” to the end substitute

(as the case may be)— (i) engaged in antisocial behaviour which has occurred in the premises, or (ii) involved in the commission of an exploitation offence in or connected with the premises.

, and

• (e) after subsection (3) insert—

(3A) For the purpose of paragraph (b)(ii) of subsection (3), a person such as is mentioned in paragraph (a) of that subsection is not involved in the commission of an exploitation offence where that person is the victim of the offence.

.

• (4) In section 32 of that Act (extension)—

• (a) after subsection (1) insert—

(1A) The sheriff may, on the application of a senior police officer and if satisfied that it is necessary to do so to prevent the commission of an exploitation offence, make an order extending the period for which a closure order has effect for a period not exceeding the maximum period.

,

• (b) in subsection (2), for “subsection (1)” substitute “ subsections (1) and (1A) ”,

• (c) in subsection (3)—

• (i) after “may” insert “ , in a case involving antisocial behaviour, ”, and

• (ii) for “this section” substitute “ subsection (1) ”, and

• (d) after subsection (3) insert—

(3A) A senior police officer may, in a case involving an exploitation offence, make an application under subsection (1A) only if— (a) it is made while the closure order has effect, and (b) the senior police officer— (i) has reasonable grounds for believing that it is necessary to extend the period for which the closure order has effect for the purpose of preventing the commission of an exploitation offence, and (ii) is satisfied that the appropriate local authority has been consulted about the intention to make the application.

.

• (5) In section 33 of that Act (revocation), in subsection (1), for the words from “the occurrence” to the end substitute

(as the case may be)— (a) the occurrence of relevant harm, or (b) the commission of an exploitation offence, revoke the order.

.

• (6) In section 36 of that Act (appeals), in subsection (5), after “section 32(1)” insert “ or (1A) ”.

• (7) After section 40 of that Act insert—

(40A) (1) In this Part, an “exploitation offence” is any of the following offences— (a) so far as concerning travel or identity documentation for enabling the trafficking of people (including passports, visas and work permits)— (i) fraud, or (ii) uttering a forged document, (b) so far as concerning the trafficking of people, an offence under section 26(1)(d) of the Immigration Act 1971 (c.77) (falsification of documentation), (c) an offence under section 52 or 52A of the Civic Government (Scotland) Act 1982 (c.45) (possession, taking or distribution of indecent images of children), (d) an offence under sections 7 to 12 or 13(9) of the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39) (offences relating to prostitution and brothels), (e) an offence under section 22 of the Criminal Justice (Scotland) Act 2003 (asp 7) (traffic in prostitution etc.), (f) an offence under section 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9) (meeting a child following certain preliminary contact), (g) an offence under sections 9 to 12 of that Act (offences relating to provision by child of sexual services or child pornography), (h) an offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c.19) (trafficking people for exploitation), (i) an offence under Part 1 of the Sexual Offences (Scotland) Act 2009 (asp 9) (rape etc.), (j) an offence under Part 4 of that Act (sexual offences involving children) other than an offence under section 37 (older children engaging in sexual conduct with each other), (k) an offence under section 42 of that Act (sexual abuse of trust), (l) an offence under section 46 of that Act (sexual abuse of trust of a mentally disordered person), (m) an offence under section 47 (slavery, servitude and forced or compulsory labour) of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13). (2) For the purposes of subsection (1)(a) and (b), a reference to trafficking of people is a reference to a person intentionally doing something in respect of at least one other person which involves the commission of an offence mentioned in subsection (1)(e) or (h). (3) For the purposes of subsection (1), a reference to an offence includes a reference to— (a) an attempt to commit an offence, (b) incitement to commit an offence, (c) counselling or procuring the commission of an offence, (d) involvement art and part in an offence, and (e) an offence as modified by section 54 of the Sexual Offences (Scotland) Act 2009 (asp 9) (incitement to commit certain sexual acts outside the United Kingdom). (4) The Scottish Ministers may by order add to or otherwise modify the specification of offences listed in subsection (1).

.

Sexual offences prevention orders

Sexual offences prevention orders

100

• (1) In section 141 of the Criminal Justice and Immigration Act 2008 (c.4) (sexual offences prevention orders: relevant sexual offences), subsection (2) is repealed.

• (2) In the Sexual Offences Act 2003 (c.42)—

• (a) in section 106 (applications and grounds for sexual offences prevention orders: supplemental), in subsection (13), the words from “in their” to the end are repealed,

• (b) in section 109 (interim SOPOs), in subsection (5), for “107(3)” substitute “ 107(2) ”,

• (c) after section 111 insert—

(111A) (1) This section applies in relation to a sexual offences prevention order or an interim sexual offences prevention order made, or to be made, by a court in Scotland. (2) Such an order, in addition to or instead of prohibiting the defendant from doing anything described in the order, may require the defendant to do anything described in the order. (3) Accordingly, in relation to such an order— (a) the references in sections 107(2) and 108(5) to a prohibition include a reference to a requirement, and (b) the reference in section 113(1) to a person's doing anything which he is prohibited from doing includes a reference to his failing to do anything which he is required to do.

, and

• (d) in section 112 (provisions relating to sexual offences prevention orders in Scotland), in subsection (1), after paragraph (d) insert—

(da) a court may make an order under section 104(1)— (i) at its own instance, or (ii) on the motion of the prosecutor;

.

Foreign travel orders

Foreign travel orders

101

• (1) The Sexual Offences Act 2003 (c.42) is amended as follows.

• (2) In section 115 (definition of “protecting children generally or any child from serious sexual harm from the defendant outside the United Kingdom”), in subsection (2), for “16” in both places it occurs substitute “ 18 ”.

• (3) In section 116 (qualifying offenders: offences), in subsection (2)(d), for “16” substitute “ 18 ”.

• (4) In section 117(1) (foreign travel orders: effect), for “6 months” substitute “ 5 years ”.

• (5) Before section 118, insert—

(117B) (1) This section applies in relation to a foreign travel order which contains a prohibition within section 117(2)(c). (2) The order must require the person in respect of whom the order has effect to surrender all of the person's passports, at a police station in Scotland specified in the order— (a) on or before the date when the prohibition takes effect, or (b) within a period specified in the order. (3) Any passports surrendered must be returned as soon as reasonably practicable after the person ceases to be subject to a foreign travel order containing a prohibition within section 117(2)(c). (4) Subsection (3) does not apply in relation to— (a) a passport issued by or on behalf of the authorities of a country outside the United Kingdom if the passport has been returned to those authorities; (b) a passport issued by or on behalf of an international organisation if the passport has been returned to that organisation. (5) In this section “passport” means— (a) a United Kingdom passport within the meaning of the Immigration Act 1971 (c.77); (b) a passport issued by or on behalf of the authorities of a country outside the United Kingdom, or by or on behalf of an international organisation; (c) a document that can be used (in some or all circumstances) instead of a passport.

.

• (6) In section 122 (breach of foreign travel order), before subsection (2) insert—

(1B) A person commits an offence if, without reasonable excuse, the person fails to comply with— (a) a requirement under section 117A(2) (surrender of passports: England and Wales and Northern Ireland), or (b) a requirement under section 117B(2) (surrender of passports: Scotland). (1C) A person may be prosecuted, tried and punished for any offence under subsection (1B)— (a) in any sheriff court district in which the person is apprehended or is in custody, or (b) in such sheriff court district as the Lord Advocate may determine, as if the offence had been committed in that district (and the offence is, for all purposes incidental to or consequential on the trial or punishment, to be deemed to have been committed in that district).

.

Sex offender notification requirements

Sex offender notification requirements

102

• (1) The Sexual Offences Act 2003 (c.42) is amended as follows.

• (2) In section 85 (notification requirements: periodic notification)—

• (a) in subsection (1), for “period of one year” substitute “ applicable period ”,

• (b) in subsection (3), for “period referred to in subsection (1)” substitute “ applicable period ”, and

• (c) after subsection (4) insert—

(5) In this section, the “applicable period” means— (a) in any case where subsection (6) applies to the relevant offender, such period not exceeding one year as the Scottish Ministers may prescribe in regulations, and (b) in any other case, the period of one year. (6) This subsection applies to the relevant offender if the last home address notified by the offender under section 83(1) or 84(1) or subsection (1) was the address or location of such a place as is mentioned in section 83(7)(b).

.

• (3) In section 86 (notification requirements: travel outside the United Kingdom), subsection (4) is repealed.

• (4) In section 87 (method of notification and related matters), subsection (6) is repealed.

• (5) In section 96 (information about release or transfer), subsection (4) is repealed.

• (6) In section 138 (orders and regulations)—

• (a) in subsection (2), after “84,” insert “ 85, ”, and

• (b) after subsection (3) insert—

(4) Orders or regulations made by the Scottish Ministers under this Act may— (a) make different provision for different purposes, (b) include supplementary, incidental, consequential, transitional, transitory or saving provisions.

.

Risk of sexual harm orders

Risk of sexual harm orders

103

• (1) The Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9) is amended as follows.

• (2) In section 2 (risk of sexual harm orders: applications, grounds and effect)—

• (a) in subsection (7)(a), after “doing” insert “ , or requires that person to do, ”, and

• (b) in subsection (8), after “prohibitions” insert “ or requirements ”.

• (3) In section 4 (risk of sexual harm orders: variations, renewals and discharges), in subsection (4), after “prohibitions” in both places where it occurs insert “ or requirements ”.

• (4) In section 5 (interim risk of sexual harm orders), in subsection (3), after “doing” insert “ , or requiring that person to do, ”.

• (5) In section 7 (offence: breach of risk of sexual harm order or interim risk of sexual harm order), in subsection (1), after “doing” insert “ , or fails to do anything which the person is required to do, ”.

Risk of sexual harm orders: spent convictions

104

In section 7 of the Rehabilitation of Offenders Act 1974 (c.53) (limitations on rehabilitation under the Act), in subsection (2), after paragraph (bb) insert—

(bc) in any proceedings on an application under section 2, 4 or 5 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9) or in any appeal under section 6 of that Act;

.

Obtaining information from outwith United Kingdom

Obtaining information from outwith United Kingdom

105

After section 194I of the 1995 Act insert—

(194IA) (1) Where it appears to the Commission that there may be information which they require for the purposes of carrying out their functions, and the information is outside the United Kingdom, they may apply to the High Court to request assistance. (2) On an application made by the Commission under subsection (1), the High Court may request assistance if satisfied that it is reasonable in the circumstances. (3) In this section, “request assistance” means request assistance in obtaining outside the United Kingdom any information specified in the request for use by the Commission for the purposes of carrying out their functions. (4) Section 8 of the Crime (International Co-operation) Act 2003 (c.32) (sending requests for assistance) applies to requests for assistance under this section as it applies to requests for assistance under section 7 of that Act. (5) Subsections (2), (3) and (6) of section 9 of that Act (use of evidence obtained) apply to information obtained pursuant to a request for assistance under this section as they apply under subsection (1) of that section to evidence obtained pursuant to a request for assistance under section 7 of that Act.

.

Surveillance

Grant of authorisations for surveillance

106

• (1) The Regulation of Investigatory Powers (Scotland) Act 2000 (asp 11) is amended as follows.

• (2) In section 10 (authorisation of intrusive surveillance)—

• (a) in subsection (1), for the words from “the” where it second occurs to the end substitute “ any of the persons mentioned in subsection (1A) may grant authorisations for the carrying out of intrusive surveillance. ”, and

• (b) after that subsection insert—

(1A) Those persons are— (a) the chief constable of every police force, (b) the Director General of the Scottish Crime and Drug Enforcement Agency, (c) the Deputy Director General of the Scottish Crime and Drug Enforcement Agency.

.

• (3) After that section insert—

(10A) In the case of a joint surveillance operation, where authorisation is sought for the carrying out of any form of conduct to which this Act applies, authorisation may be granted by any one of the persons having power to grant authorisation for the carrying out of that conduct.

.

• (4) In section 11 (rules for grant of authorisations), in subsection (3), after “General” insert “ or the Deputy Director General ”.

• (5) In section 12A (grant of authorisations in cases of urgency: Scottish Crime and Drug Enforcement Agency), in subsection (1), after “General” insert “ or the Deputy Director General ”.

• (6) In section 14 (approval required for authorisations to take effect)—

• (a) in subsection (5)(b), after “General” insert “ or the Deputy Director General ”, and

• (b) subsection (7) is repealed.

• (7) In section 16 (appeals against decisions by Surveillance Commissioners), in subsection (1), after “General” insert “ or the Deputy Director General ”.

• (8) In section 31 (interpretation), in subsection (1), after the definitions of “directed” and “intrusive” insert—

“joint surveillance operation” means a case involving— (a) at least two police forces in Scotland working together; or (b) at least one police force in Scotland and the Scottish Crime and Drug Enforcement Agency working together;

.

Interference with property

Authorisations to interfere with property etc.

107

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

• (2) In section 93 (authorisations to interfere with property etc.)—

• (a) after subsection (3A) insert—