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Criminal Justice and Licensing (Scotland) Act 2010

Type Act of the Scottish Parliament

Publication 2010-08-06

Last updated 2021-11-08

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(3B) In the case of a joint operation, an authorising officer mentioned in subsection (3C) may authorise a person mentioned in subsection (3D) to take such action as is referred to in subsection (1). (3C) Those authorising officers are— (a) the chief constable of a police force— (i) maintained under or by virtue of section 1 of the Police (Scotland) Act 1967, and (ii) involved in the joint operation, (b) where the Scottish Crime and Drug Enforcement Agency is involved in the joint operation, the Director General or Deputy Director General of that Agency. (3D) The persons who may be authorised under subsection (1) are— (a) a constable of any of the police forces involved in the joint operation (whether or not the authorised action is to be carried out in the area of operation of the constable's police force), (b) where the joint operation falls within paragraph (b) of subsection (3C), a police member of the Scottish Crime and Drug Enforcement Agency. (3E) In subsection (3B), “joint 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.

(b) in paragraph (j) of subsection (5), after “General” insert “ , or Deputy Director General, ”, and

(3) In section 94 (authorisations given in absence of authorising officer)—

(a) in subsection (2)(h), after “(5)” insert “ or, as the case may be, subsection (6) ”,

(b) in subsection (5), at the beginning insert “ Where the case is not a joint operation, ”, and

(6) Where the case is a joint operation, the person referred to in subsection (2)(h) is the chief constable of a police force involved in the joint operation in the relevant area. (7) In subsections (5) and (6)— - “joint operation” has the meaning given by section 93(3E), and - “relevant area” means the area— 1. for which the police forces involved in the joint operation are maintained, and 2. to which the application for authorisation relates.

Amendments of Part 5 of Police Act 1997

108

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

(2) In section 113B (enhanced criminal record certificates), in subsection (3), for the words from “, or” immediately following paragraph (a) to the end of paragraph (b), substitute

(or states that there is no such matter or information), and (b) if the applicant is subject to notification requirements under Part 2 of the Sexual Offences Act 2003 (c.42), states that fact.

(3) After that section insert—

(113BA) (1) The Scottish Ministers may by order made by statutory instrument amend the definition of— (a) “criminal conviction certificate” in section 112(2), (b) “central records” in sections 112(3) and 113A(6), (c) “criminal record certificate” in section 113A(3), (d) “relevant matter” in section 113A(6), (e) “enhanced criminal record certificate” in section 113B(3). (2) An order under subsection (1) may be made only for the purposes of, or in connection with, enabling certificates issued under this Part to include details of information held outside the United Kingdom. (3) No order may be made under subsection (1) unless a draft of the statutory instrument containing the order has been laid before, and approved by resolution of, the Scottish Parliament.

(4) In section 120ZB (regulations about registration), after subsection (2) insert—

(2A) The provision which may be made by virtue of subsection (2)(a) includes in particular provision for— (a) the payment of fees in respect of applications to be listed in the register, (b) the payment of different fees in different circumstances, (c) annual or other recurring fees to be paid in respect of registration, and (d) such annual or other recurring fees to be paid in advance or in arrears. (2B) Where provision is made under subsection (2)(a) for a fee to be charged in respect of an application to be listed in the register, the Scottish Ministers need not consider the application unless the fee is paid.

Rehabilitation of offenders

Spent alternatives to prosecution: Rehabilitation of Offenders Act 1974

109

(1) The Rehabilitation of Offenders Act 1974 (c.53) is amended as follows.

(2) After section 8A (protection afforded to spent cautions), insert—

(8B) (1) For the purposes of this Act, a person has been given an alternative to prosecution in respect of an offence if the person (whether before or after the commencement of this section)— (a) has been given a warning in respect of the offence by— (i) a constable in Scotland, or (ii) a procurator fiscal, (b) has accepted, or is deemed to have accepted— (i) a conditional offer issued in respect of the offence under section 302 of the Criminal Procedure (Scotland) Act 1995 (c.46), or (ii) a compensation offer issued in respect of the offence under section 302A of that Act, (c) has had a work order made against the person in respect of the offence under section 303ZA of that Act, (d) has been given a fixed penalty notice in respect of the offence under section 129 of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), (e) has accepted an offer made by a procurator fiscal in respect of the offence to undertake an activity or treatment or to receive services or do any other thing as an alternative to prosecution, or (f) in respect of an offence under the law of a country or territory outside Scotland, has been given, or has accepted or is deemed to have accepted, anything corresponding to a warning, offer, order or notice falling within paragraphs (a) to (e) under the law of that country or territory. (2) In this Act, references to an “alternative to prosecution” are to be read in accordance with subsection (1). (3) Schedule 3 to this Act (protection for spent alternatives to prosecution: Scotland) has effect.

(3) After section 9A (unauthorised disclosure of spent cautions), insert—

(9B) (1) In this section— (a) “official record” means a record that— (i) contains information about persons given an alternative to prosecution in respect of an offence, and (ii) is kept for the purposes of its functions by a court, police force, Government department, part of the Scottish Administration or other local or public authority in Scotland, (b) “relevant information” means information imputing that a named or otherwise identifiable living person has committed, been charged with, prosecuted for or given an alternative to prosecution in respect of an offence which is the subject of an alternative to prosecution which has become spent, (c) “subject of the information”, in relation to relevant information, means the named or otherwise identifiable living person to whom the information relates. (2) Subsection (3) applies to a person who, in the course of the person's official duties (anywhere in the United Kingdom), has or has had custody of or access to an official record or the information contained in an official record. (3) The person commits an offence if the person— (a) obtains relevant information in the course of the person's official duties, (b) knows or has reasonable cause to suspect that the information is relevant information, and (c) discloses the information to another person otherwise than in the course of the person's official duties. (4) Subsection (3) is subject to the terms of an order under subsection (6). (5) In proceedings for an offence under subsection (3), it is a defence for the accused to show that the disclosure was made— (a) to the subject of the information or to a person whom the accused reasonably believed to be the subject of the information, or (b) to another person at the express request of the subject of the information or of a person whom the accused reasonably believed to be the subject of the information. (6) The Scottish Ministers may by order provide for the disclosure of relevant information derived from an official record to be excepted from the provisions of subsection (3) in cases or classes of cases specified in the order. (7) A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 4 on the standard scale. (8) A person commits an offence if the person obtains relevant information from an official record by means of fraud, dishonesty or bribery. (9) A person guilty of an offence under subsection (8) is liable on summary conviction to a fine not exceeding level 5 on the standard scale, or to imprisonment for a term not exceeding 6 months, or to both.

(4) After Schedule 2 (protection for spent cautions) insert—

SCHEDULE 3 (1) (1) For the purposes of this Act, an alternative to prosecution given to any person (whether before or after the commencement of this Schedule) becomes spent— (a) in the case of— (i) a warning referred to in paragraph (a) of subsection (1) of section 8B, or (ii) a fixed penalty notice referred to in paragraph (d) of that subsection, at the time the warning or notice is given, (b) in any other case, at the end of the relevant period. (2) The relevant period in relation to an alternative to prosecution is the period of 3 months beginning on the day on which the alternative to prosecution is given. (3) Sub-paragraph (1)(a) is subject to sub-paragraph (5). (4) Sub-paragraph (2) is subject to sub-paragraph (6). (5) If a person who is given a fixed penalty notice referred to in section 8B(1)(d) in respect of an offence is subsequently prosecuted and convicted of the offence, the notice— (a) becomes spent at the end of the rehabilitation period for the offence, and (b) is to be treated as not having become spent in relation to any period before the end of that rehabilitation period. (6) If a person who is given an alternative to prosecution (other than one to which sub-paragraph (1)(a) applies) in respect of an offence is subsequently prosecuted and convicted of the offence— (a) the relevant period in relation to the alternative to prosecution ends at the same time as the rehabilitation period for the offence ends, and (b) if the conviction occurs after the end of the period referred to in sub-paragraph (2), the alternative to prosecution is to be treated as not having become spent in relation to any period before the end of the rehabilitation period for the offence. (2) (1) In this Schedule, “ancillary circumstances”, in relation to an alternative to prosecution, means any circumstances of the following— (a) the offence in respect of which the alternative to prosecution is given or the conduct constituting the offence, (b) any process preliminary to the alternative to prosecution being given (including consideration by any person of how to deal with the offence and the procedure for giving the alternative to prosecution), (c) any proceedings for the offence which took place before the alternative to prosecution was given (including anything that happens after that time for the purpose of bringing the proceedings to an end), (d) any judicial review proceedings relating to the alternative to prosecution, (e) anything done or undergone in pursuance of the terms of the alternative to prosecution. (2) Where an alternative to prosecution is given in respect of two or more offences, references in sub-paragraph (1) to the offence in respect of which the alternative to prosecution is given includes a reference to each of the offences. (3) In this Schedule, “proceedings before a judicial authority” has the same meaning as in section 4. (3) (1) A person who is given an alternative to prosecution in respect of an offence is, from the time the alternative to prosecution becomes spent, to be treated for all purposes in law as a person who has not committed, been charged with or prosecuted for, or been given an alternative to prosecution in respect of, the offence. (2) Despite any enactment or rule of law to the contrary— (a) where an alternative to prosecution given to a person in respect of an offence has become spent, evidence is not admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Scotland to prove that the person has committed, been charged with or prosecuted for, or been given an alternative to prosecution in respect of, the offence, (b) a person must not, in any such proceedings, be asked any question relating to the person's past which cannot be answered without acknowledging or referring to an alternative to prosecution that has become spent or any ancillary circumstances, and (c) if a person is asked such a question in any such proceedings, the person is not required to answer it. (3) Sub-paragraphs (1) and (2) do not apply in relation to any proceedings— (a) for the offence in respect of which the alternative to prosecution was given, and (b) which are not part of the ancillary circumstances. (4) (1) This paragraph applies where a person (“A”) is asked a question, otherwise than in proceedings before a judicial authority, seeking information about— (a) A's or another person's previous conduct or circumstances, (b) offences previously committed by A or the other person, or (c) alternatives to prosecution previously given to A or the other person. (2) The question is to be treated as not relating to alternatives to prosecution that have become spent or to any ancillary circumstances and may be answered accordingly. (3) A is not to be subjected to any liability or otherwise prejudiced in law because of a failure to acknowledge or disclose an alternative to prosecution that has become spent or any ancillary circumstances in answering the question. (5) (1) An obligation imposed on a person (“A”) by a rule of law or by the provisions of an agreement or arrangement to disclose any matter to another person does not extend to requiring A to disclose an alternative to prosecution (whether one given to A or another person) that has become spent or any ancillary circumstances. (2) An alternative to prosecution that has become spent or any ancillary circumstances, or any failure to disclose an alternative to prosecution that has become spent or any ancillary circumstances, is not a ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing the person in any way in any occupation or employment. (6) The Scottish Ministers may by order— (a) exclude or modify the application of either or both of sub-paragraphs (2) and (3) of paragraph 4 in relation to questions put in such circumstances as may be specified in the order, (b) provide for exceptions from any of the provisions of paragraph 5 in such cases or classes of case, or in relation to alternatives to prosecution of such descriptions, as may be specified in the order (7) Paragraphs 3 to 5 do not affect— (a) the operation of an alternative to prosecution, or (b) the operation of an enactment by virtue of which, because of an alternative to prosecution, a person is subject to a disqualification, disability, prohibition or other restriction or effect for a period extending beyond the time at which the alternative to prosecution becomes spent (8) (1) Section 7(2), (3) and (4) apply for the purpose of this Schedule as follows. (2) Subsection (2), apart from paragraphs (b) and (d), applies to the determination of any issue, and the admission or requirement of evidence, relating to alternatives to prosecution previously given to a person and to ancillary circumstances as it applies to matters relating to a person's previous convictions and circumstances ancillary thereto. (3) Subsection (3) applies to evidence of alternatives to prosecution previously given to a person and ancillary circumstances as it applies to evidence of a person's previous convictions and the circumstances ancillary thereto. (4) For that purpose, subsection (3) has effect as if— (a) a reference to subsection (2) or (4) of section 7 were a reference to that subsection as applied by this paragraph, and (b) the words “or proceedings to which section 8 below applies” were omitted. (5) Subsection (4) applies for the purpose of excluding the application of paragraph 3. (6) For that purpose, subsection (4) has effect as if the words “(other than proceedings to which section 8 below applies)” were omitted. (7) References in the provisions applied by this paragraph to section 4(1) are to be read as references to paragraph 3.

Medical services in prisons

110

(1) For section 3A of the Prisons (Scotland) Act 1989 (c.45) (medical services in prisons) substitute—

(3A) (1) The Scottish Ministers must designate one or more medical officers for each prison. (2) A person may be designated as a medical officer for a prison only if the person is a registered medical practitioner performing primary medical services for prisoners at the prison under the National Health Service (Scotland) Act 1978 (c.29). (3) A medical officer has the functions that are conferred on a medical officer for a prison by or under this Act or any other enactment. (4) A medical officer is not an officer of the prison for the purposes of this Act. (5) Rules under section 39 of this Act may provide for the governor of a prison to authorise the carrying out by officers of the prison of a search of any person who is in, or is seeking to enter, the prison for the purpose of providing medical services for any prisoner at the prison. (6) Nothing in rules made by virtue of subsection (5) allows the governor to authorise an officer of a prison to require a person to remove any of the person's clothing other than an outer coat, jacket, headgear, gloves and footwear.

(2) In section 41D of that Act (unlawful disclosure of information by medical officers), for subsection (1) substitute—

(1) This section applies to— (a) a medical officer for a prison, and (b) any person acting under the supervision of such a medical officer.

(3) In section 107 of the Criminal Justice and Public Order Act 1994 (c.33) (officers of contracted out prisons), for subsections (6) to (8) substitute—

(6) The director must designate one or more medical officers for the prison. (7) A person may be designated as a medical officer for the prison only if the person is a registered medical practitioner performing primary medical services for prisoners at the prison under the National Health Service (Scotland) Act 1978 (c.29).

(4) In section 110 of that Act (consequential modifications of the 1989 Act etc.)—

(a) in each of subsections (3) and (4), for “3A(6)” substitute “ 3A(5) and (6) ”,

(b) subsection (4A) is repealed, and

(5) In section 111(3) of that Act (intervention by the Scottish Ministers), in paragraph (c), after “prison” insert “ and the medical officer or officers for the prison ”.

Miscellaneous

Assistance for victim support

111

(1) The Scottish Ministers may make grants for the purposes of or in connection with the provision of assistance to victims, witnesses or other persons affected by an offence.

(2) Grants under subsection (1) may be made—

(a) to such bodies, and

(b) subject to such conditions,

as the Scottish Ministers consider appropriate.

Public defence solicitors

112

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

(a) in subsection (1), the words from “may” where it first occurs to “accordingly,” are repealed, and

(b) subsection (9A) is repealed.

(2) In section 73 of the Criminal Justice (Scotland) Act 2003 (asp 7) (public defence), paragraph (b) is repealed.

Compensation for miscarriages of justice

113

(1) In section 133 of the Criminal Justice Act 1988 (c.33) (compensation for miscarriages of justice)—

(a) after subsection (1) insert—

(1A) The Scottish Ministers may by order provide for— (a) further circumstances in respect of which a person (or, if dead, the person's representatives) may be paid compensation for a miscarriage of justice, (b) circumstances in respect of which a person (or, if dead, the person's representatives) may be paid compensation for wrongful detention prior to acquittal or a decision by the prosecutor to take no proceedings (or to discontinue proceedings).

(b) after subsection (2) insert—

(2AA) Such an application requires to be made within the period of 3 years starting with— (a) in the case of compensation under subsection (1), the date on which the conviction is reversed or (as the case may be) the person is pardoned, (b) in the case of compensation under subsection (1A), whichever is relevant of— (i) that date, or (ii) the date on which the person is acquitted or the relevant decision is made known to the person. (2AB) The Scottish Ministers may accept such an application outwith that time limit if they think it is appropriate in exceptional circumstances to do so.

(aa) the seriousness of the offence with which the person was charged or detained (but in respect of which offence the person was not convicted);

(d) after subsection (4A) insert—

(4B) The assessor must also have particular regard to any guidance issued by the Scottish Ministers for the purposes of this section.

(e) in subsection (5)—

(i) after “quashed” insert “ (or set aside) ”,

(ii) the word “or” where it occurs immediately after each of paragraphs (a), (b) and (c) is repealed, and

(iii) after paragraph (d) add

; or (e) under section 188(1)(b) of the Criminal Procedure (Scotland) Act 1995.

(f) after subsection (6) insert—

(6A) For the purposes of this section, a person suffers punishment as a result of conviction also where (in relation to the conviction) the court imposes some other disposal including by way of— (a) making a probation order, or (b) discharging the person absolutely.

, and

(g) after subsection (7) insert—

(8) The power to make an order under subsection (1A) is exercisable by statutory instrument. (9) A statutory instrument containing such an order is subject to annulment in pursuance of a resolution of the Scottish Parliament.

(2) In Schedule 12 to that Act (assessors of compensation for miscarriages of justice), in paragraph 1—

(a) immediately after sub-paragraph (c), insert “ or ”, and

(b) sub-paragraph (e) and the word “or” immediately preceding it are repealed.

Financial reporting orders

114

In section 77 of the Serious Organised Crime and Police Act 2005 (c.15) (financial reporting orders: making in Scotland), after subsection (4) insert—

(4A) A financial reporting order may be made— (a) on the prosecutor's motion, or (b) at the court's own instance.

Compensation orders

115

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

(a) in subsection (1)—

(i) for “Subject to subsections (2) and (4) below, where” substitute “ Where ”, and

(ii) after “compensation” where it second occurs insert “ in favour of the victim ”,

(b) after subsection (1A) insert—

(1B) Where a person is convicted of an offence, the court may (instead of or in addition to dealing with the person in any other way), in accordance with subsections (3A) to (3C), make a compensation order requiring the convicted person to pay compensation in favour of— (a) the victim, or (b) a person who is liable for funeral expenses in respect of which subsection (3C)(b) allows a compensation order to be made. (1C) For the purposes of subsection (1B)(a), “victim” means— (a) a person who has suffered personal injury, loss or damage in respect of which a compensation order may be made by virtue of subsection (3A), or (b) a relative (as defined in Schedule 1 to the Damages (Scotland) Act 1976 (c.13)) who has suffered bereavement in respect of which subsection (3C)(a) allows a compensation order to be made.

(3A) A compensation order may be made in respect of personal injury, loss or damage (apart from loss suffered by a person's dependents in consequence of a person's death) that was caused directly or indirectly by an accident arising out of the presence of a motor vehicle on a road if— (a) it was being used in contravention of section 143(1) of the Road Traffic Act 1988 (c.52), and (b) no compensation is payable under arrangements to which the Secretary of State is a party. (3B) Where a compensation order is made by virtue of subsection (3) or (3A), the order may include an amount representing the whole or part of any loss of (including reduction in) preferential rates of insurance if the loss is attributable to the accident. (3C) A compensation order may be made— (a) for bereavement in connection with a person's death resulting from the acts which constituted the offence, (b) for funeral expenses in connection with such a death, except where the death was due to an accident arising out of the presence of a motor vehicle on a road.

(d) in subsection (4)—

(i) for “No” substitute “ Unless (and to the extent that) subsections (3) to (3C) allow a compensation order to be made, no ”, and

(ii) in paragraph (b), the words from “, except” to the end are repealed,

(e) subsection (6) is repealed, and

(f) after subsection (8) insert—

(8A) In summary proceedings before the sheriff, where the fine or maximum fine to which a person is liable on summary conviction of an offence exceeds the prescribed sum, the sheriff may make a compensation order awarding in respect of the offence an amount not exceeding the amount of the fine to which the person is so liable.

(2) In section 251 of that Act (review of compensation order)—

(a) paragraph (a) of subsection (1) is repealed, and

(b) after subsection (1) insert—

(1A) On the application of the prosecutor at any time before a compensation order has been complied with (or fully complied with), the court may increase the amount payable under the compensation order if it is satisfied that the person against whom it was made— (a) because of the availability of materially different information about financial circumstances, has more means than were made known to the court when the order was made, or (b) because of a material change of financial circumstances, has more means than the person had then.

PART 6 — DISCLOSURE

Meaning of “information”

116

(1) In this Part, “information”, in relation to criminal proceedings relating to a person, means material of any kind given to or obtained by the prosecutor in connection with the proceedings.

(2) In this Part, “information”, in relation to appellate proceedings, includes material of any kind given to or obtained by the prosecutor in connection with the appellate proceedings or the earlier proceedings.

(2A) In this Part, “ information ”, in relation to 2011 Act proceedings, includes material of any kind given to or obtained by the prosecutor in connection with those proceedings or the first proceedings.

(3) In subsection (2)—

“appellate proceedings” has the meaning given by section 132,

“earlier proceedings” has the meaning given by section 133(5).

(3A) In subsection (2A)—

“ 2011 Act proceedings ” has the meaning given by section 140A,

“ first proceedings ” has the meaning given by section 140B(5).

Provision of information to prosecutor

Provision of information to prosecutor: solemn cases

117

(1) This section applies where in a prosecution—

(a) an accused appears for the first time on petition, or

(b) an accused appears for the first time on indictment (not having appeared on petition in relation to the same matter).

(2) As soon as practicable after the appearance, the investigating agency must provide the prosecutor with details of all the information that may be relevant to the case for or against the accused that the agency is aware of that was obtained (whether by the agency or otherwise) in the course of investigating the matter to which the appearance relates.

(3) As soon as practicable after being required to do so by the prosecutor, the investigating agency must provide the prosecutor with any of that information that the prosecutor specifies in the requirement.

(4) In this section, “investigating agency” means—

(a) the Police Service of Scotland, or

(b) such other person who—

(i) engages (to any extent) in the investigation of crime or sudden deaths, and

(ii) submits reports relating to those investigations to the procurator fiscal,

as the Scottish Ministers may prescribe by regulations.

Continuing duty to provide information: solemn cases

118

(1) This section applies where—

(a) an investigating agency has complied with section 117(2) in relation to an accused, and

(b) during the relevant period the investigating agency becomes aware that further information that may be relevant to the case for or against the accused has been obtained (whether by the agency or otherwise) in the course of investigating the accused's case.

(2) As soon as practicable after becoming aware of the further information, the investigating agency must provide the prosecutor with details of it.

(3) As soon as practicable after being required to do so by the prosecutor, the investigating agency must provide the prosecutor with any of that further information that the prosecutor specifies in the requirement.

(4) In this section, “relevant period” means the period—

(a) beginning with the investigating agency's compliance with section 117(2) in relation to the accused, and

(b) ending with the agency's receiving notice from the prosecutor of the conclusion of the proceedings against the accused.

(5) For the purposes of subsection (4), proceedings against an accused are to be taken to be concluded if—

(a) a plea of guilty is recorded against the accused,

(b) the accused is acquitted,

(d) the accused is convicted and does not appeal against the conviction before the expiry of the time allowed for such an appeal,

(e) the accused is convicted and appeals against the conviction before the expiry of the time allowed for such an appeal,

(f) the proceedings are deserted pro loco et tempore for any reason and no further trial diet is appointed, or

(g) the indictment falls or is for any other reason not brought to trial, the diet is not continued, adjourned or postponed and no further proceedings are in contemplation.

Provision of information to prosecutor: summary cases

119

(1) This section applies where a plea of not guilty is recorded against an accused charged on summary complaint.

(2) As soon as practicable after the recording of the plea, the investigating agency must inform the prosecutor of the existence of all the information that may be relevant to the case for or against the accused that the agency is aware of that was obtained (whether by the agency or otherwise) in the course of investigating the matter to which the plea relates.

(3) As soon as practicable after being required to do so by the prosecutor, the investigating agency must provide the prosecutor with any of that information that the prosecutor specifies in the requirement.

Continuing duty of investigating agency: summary cases

120

(1) This section applies where—

(a) an investigating agency has complied with section 119(2) in relation to an accused, and

(b) during the relevant period the investigating agency becomes aware that further information that may be relevant to the case for or against the accused has been obtained (whether by the agency or otherwise) in the course of investigating the accused's case.

(2) As soon as practicable after becoming aware of the further information, the investigating agency must inform the prosecutor of the existence of the information.

(3) As soon as practicable after being required to do so by the prosecutor, the investigating agency must provide the prosecutor with any of that further information that the prosecutor specifies in the requirement.

(4) In this section, “relevant period” means the period—

(a) beginning with the investigating agency's compliance with section 119(2) in relation to the accused, and

(b) ending with the agency's receiving notice from the prosecutor of the conclusion of the proceedings against the accused.

(5) For the purposes of subsection (4), proceedings against an accused are to be taken to be concluded if—

(a) a plea of guilty is recorded against the accused,

(b) the accused is acquitted,

(d) the accused is convicted and does not appeal against the conviction before the expiry of the time allowed for such an appeal,

(e) the accused is convicted and appeals against the conviction before the expiry of the time allowed for such an appeal,

(f) the proceedings are deserted pro loco et tempore for any reason and no further trial diet is appointed, or

(g) the complaint falls or is for any other reason not brought to trial, the diet is not continued, adjourned or postponed and no further proceedings are in contemplation.

Prosecutor's duty to disclose information

Prosecutor’s duty to disclose information

121

(1) This section applies where in a prosecution—

(a) an accused appears for the first time on petition,

(b) an accused appears for the first time on indictment (not having appeared on petition in relation to the same matter), or

(2) As soon as practicable after the appearance or the recording of the plea, the prosecutor must—

(a) review all the information that may be relevant to the case for or against the accused of which the prosecutor is aware, and

(b) disclose to the accused the information to which subsection (3) applies.

(3) This subsection applies to information if—

(a) the information would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused,

(b) the information would materially strengthen the accused's case, or

(c) the information is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused.

Disclosure of other information: solemn cases

122

(1) This section applies where by virtue of subsection (2)(b) of section 121 the prosecutor is required to disclose information to an accused who falls within paragraph (a) or (b) of subsection (1) of that section.

(2) As soon as practicable after complying with the requirement, the prosecutor must disclose to the accused details of any information which the prosecutor is not required to disclose under section 121(2)(b) but which may be relevant to the case for or against the accused.

(3) The prosecutor need not disclose under subsection (2) details of sensitive information.

(4) In subsection (3), “sensitive”, in relation to an item of information, means that if it were to be disclosed there would be a risk of—

(a) causing serious injury, or death, to any person,

(b) obstructing or preventing the prevention, detection, investigation or prosecution of crime, or

Continuing duty of prosecutor

123

(1) Subsection (2) applies where the prosecutor has complied with section 121(2)(b) in relation to an accused.

(2) During the relevant period, the prosecutor must—

(a) from time to time review all the information that may be relevant to the case for or against the accused of which the prosecutor is aware, and

(b) disclose to the accused any information to which section 121(3) applies.

(3) As soon as practicable after complying with subsection (2) in relation to an accused who falls within section 121(1)(a) or (b), the prosecutor must disclose to the accused details of any other information that may be relevant to the case for or against the accused of which the prosecutor is aware.

(4) The prosecutor need not disclose under subsection (3) details of sensitive information.

(5) In subsection (2)––

“relevant period” means the period—beginning with the prosecutor's compliance with section 121(2)(b) in relation to an accused, andending with the conclusion of the proceedings against the accused,

“sensitive” has the meaning given by section 122(4).

(6) For the purposes of subsection (5), proceedings against an accused are to be taken to be concluded if—

(a) a plea of guilty is recorded against the accused,

(b) the accused is acquitted,

(d) the accused is convicted and does not appeal against the conviction before the expiry of the time allowed for such an appeal,

(e) the accused is convicted and appeals against the conviction before the expiry of the time allowed for such an appeal,

(f) the proceedings are deserted pro loco et tempore for any reason and no further trial diet is appointed, or

(g) the indictment or complaint falls or is for any other reason not brought to trial, the diet is not continued, adjourned or postponed and no further proceedings are in contemplation.

Defence statements

Defence statements: solemn proceedings

124

(1) This section applies where the accused lodges a defence statement under section 70A of the 1995 Act.

(2) As soon as practicable after the prosecutor receives a copy of the defence statement, the prosecutor must—

(a) review all the information that may be relevant to the case for or against the accused of which the prosecutor is aware, and

(b) disclose to the accused any information to which section 121(3) applies.

(3) After section 70 of the 1995 Act insert—

(70A) (1) This section applies where an indictment is served on an accused. (2) The accused must lodge a defence statement at least 14 days before the first diet. (3) The accused must lodge a defence statement at least 14 days before the preliminary hearing. (4) At least 7 days before the trial diet the accused must— (a) where there has been no material change in circumstances in relation to the accused's defence since the last defence statement was lodged, lodge a statement stating that fact, (b) where there has been a material change in circumstances in relation to the accused's defence since the last defence statement was lodged, lodge a defence statement. (5) If after lodging a statement under subsection (2), (3) or (4) there is a material change in circumstances in relation to the accused's defence, the accused must lodge a defence statement. (6) Where subsection (5) requires a defence statement to be lodged, it must be lodged before the trial diet begins unless on cause shown the court allows it to be lodged during the trial diet. (7) The accused may lodge a defence statement— (a) at any time before the trial diet, or (b) during the trial diet if the court on cause shown allows it. (8) As soon as practicable after lodging a defence statement or a statement under subsection (4)(a), the accused must send a copy of the statement to the prosecutor and any co-accused. (9) In this section, “defence statement” means a statement setting out— (a) the nature of the accused's defence, including any particular defences on which the accused intends to rely, (b) any matters of fact on which the accused takes issue with the prosecution and the reason for doing so, (c) particulars of the matters of fact on which the accused intends to rely for the purposes of the accused's defence, (d) any point of law which the accused wishes to take and any authority on which the accused intends to rely for that purpose, (e) by reference to the accused's defence, the nature of any information that the accused requires the prosecutor to disclose, and (f) the reasons why the accused considers that disclosure by the prosecutor of any such information is necessary.

(4) In section 78 of the 1995 Act (special defences, incrimination, notice of witnesses etc.), after subsection (1) insert—

(1A) Subsection (1) does not apply where— (a) the accused lodges a defence statement under section 70A, and (b) the accused's defence consists of or includes a special defence.

Defence statements: summary proceedings

125

(1) This section applies where—

(a) a plea of not guilty is recorded against an accused charged on summary complaint, and

(b) during the relevant period the accused lodges a defence statement.

(2) A defence statement must set out—

(a) the nature of the accused's defence, including any particular defences on which the accused intends to rely,

(b) any matters of fact on which the accused takes issue with the prosecution and the reason for doing so,

(d) any point of law which the accused wishes to take and any authority on which the accused intends to rely for that purpose,

(e) by reference to the accused's defence, the nature of any information that the accused wishes the prosecutor to disclose, and

(f) the reasons why the accused considers that disclosure by the prosecutor of any such information is necessary.

(3) As soon as practicable after lodging a defence statement, the accused must send a copy of the statement to the prosecutor and any co-accused.

(4) As soon as practicable after receiving a copy of the defence statement the prosecutor must—

(a) review all the information that may be relevant to the case for or against the accused of which the prosecutor is aware, and

(b) disclose to the accused any information to which section 121(3) applies.

(5) In this section, “relevant period”, in relation to the accused, is the period—

(a) beginning with the recording of the accused's plea of not guilty, and

(b) ending with the conclusion of the proceedings to which the plea relates.

(6) For the purposes of subsection (5), proceedings are to be taken to be concluded if—

(a) a plea of guilty is recorded against the accused,

(b) the accused is acquitted,

(d) the accused is convicted and does not appeal against the conviction before the expiry of the time allowed for such an appeal,

(e) the accused is convicted and appeals against the conviction before the expiry of the time allowed for such an appeal,

(f) the proceedings are deserted pro loco et tempore for any reason and no further trial diet is appointed, or

(g) the complaint falls or is for any other reason not brought to trial, the diet is not continued, adjourned or postponed and no further proceedings are in contemplation.

(7) In section 149B of the 1995 Act (notice of defences), after subsection (2) insert—

(2A) Subsection (1) does not apply where— (a) the accused lodges a defence statement under section 125 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), (b) the statement is lodged— (i) where an intermediate diet is to be held, at or before the diet, or (ii) where such a diet is not to be held, no later than 10 clear days before the trial diet, and (c) the accused's defence consists of or includes a defence to which that subsection applies.

Change in circumstances following lodging of defence statement: summary proceedings

126

(1) This section applies where the accused lodges a defence statement under section 125 at least 14 days before the trial diet.

(2) At least 7 days before the trial diet the accused must—

(a) where there has been no material change in circumstances in relation to the accused's defence since the defence statement was lodged, lodge a statement stating that fact,

(b) where there has been a material change in circumstances in relation to the accused's defence since the defence statement was lodged, lodge a defence statement.

(3) If after lodging a statement under subsection (2) there is a material change in circumstances in relation to the accused's defence, the accused must lodge a defence statement.

(4) Where subsection (3) requires a defence statement to be lodged, it must be lodged before the trial diet begins unless on cause shown the court allows it to be lodged during the trial diet.

(5) As soon as practicable after lodging a statement under subsection (2)(a) or a defence statement under subsection (2)(b) or (3), the accused must send a copy of the statement concerned to the prosecutor and any co-accused.

(6) As soon as practicable after receiving a copy of a defence statement lodged under subsection (2)(b) or (3) the prosecutor must—

(a) review all the information that may be relevant to the case for or against the accused of which the prosecutor is aware, and

(b) disclose to the accused any information to which section 121(3) applies.

(7) In this section, “defence statement” is to be construed in accordance with section 125(2).

Sections 121 to 126: general

Sections 121 to 126: no need to disclose same information more than once

127

(1) Subsection (2) applies where the prosecutor is required by section 121(2)(b), 122(2), 123(2)(b) or (3), 124(2)(b), 125(4)(b) or 126(6)(b) to disclose information to an accused.

(2) The prosecutor need not disclose anything that the prosecutor has already disclosed to the accused in relation to the same matter (whether because the same matter has been the subject of an earlier petition, indictment or complaint or otherwise).

Court rulings on disclosure

Application by accused for ruling on disclosure

128

(1) This section applies where the accused—

(a) has lodged a defence statement under section 70A of the 1995 Act or section 125 or 126 of this Act, and

(b) considers that the prosecutor has failed, in responding to the statement, to disclose to the accused an item of information to which section 121(3) applies (the “information in question”).

(2) The accused may apply to the court for a ruling on whether section 121(3) applies to the information in question.

(3) An application under subsection (2) is to be made in writing and must set out—

(a) where the accused is charged with more than one offence, the charge or charges to which the application relates,

(b) a description of the information in question, and

(4) On receiving an application under subsection (2), the court must appoint a hearing at which the application is to be considered and determined.

(5) However, the court may dispose of the application without appointing a hearing if the court considers that the application does not—

(a) comply with subsection (3), or

(b) otherwise disclose any reasonable grounds for considering that section 121(3) applies to the information in question.

(6) At a hearing appointed under subsection (4), the court must give the prosecutor and the accused an opportunity to be heard before determining the application.

(7) On determining the application, the court must—

(a) make a ruling on whether section 121(3) applies to the information in question or to any part of the information in question, and

(b) where the accused is charged with more than one offence, specify the charge or charges to which the ruling relates.

(8) Except where it is impracticable to do so, the application is to be assigned to the justice of the peace, sheriff or judge who is presiding, or is to preside, at the accused's trial.

Review of ruling under section 128

129

(1) This section applies where—

(a) the court has made a ruling under section 128 that section 121(3) does not apply to an item of information (the “information in question”), and

(b) during the relevant period—

(i) the accused becomes aware of information (the “secondary information”) that was unavailable to the court at the time it made its ruling, and

(ii) the accused considers that, had the secondary information been available to the court at that time, it would have made a ruling that section 121(3) does apply to the information in question.

(2) The accused may apply to the court which made the ruling for a review of the ruling.

(3) An application under subsection (2) is to be made in writing and must set out—

(a) where the accused is charged with more than one offence, the charge or charges to which the application relates,

(b) a description of the information in question and the secondary information, and

(4) On receiving an application under subsection (2), the court must appoint a hearing at which the application is to be considered and determined.

(5) However, the court may dispose of the application without appointing a hearing if the court considers that the application does not—

(a) comply with subsection (3), or

(b) otherwise disclose any reasonable grounds for considering that section 121(3) applies to the information in question.

(6) At a hearing appointed under subsection (4), the court must give the prosecutor and the accused an opportunity to be heard before determining the application.

(7) On determining the application, the court may—

(a) affirm the ruling being reviewed, or

(b) recall that ruling and—

(i) make a ruling that section 121(3) applies to the information in question or to any part of the information in question, and

(ii) where the accused is charged with more than one offence, specify the charge or charges to which the ruling relates.

(8) Except where it is impracticable to do so, the application is to be assigned to the justice of the peace, sheriff or judge who dealt with the application for the ruling that is being reviewed.

(9) Nothing in this section affects any right of appeal in relation to the ruling being reviewed.

(10) In this section, “relevant period”, in relation to an accused, means the period—

(a) beginning with the making of the ruling being reviewed, and

(b) ending with the conclusion of proceedings against the accused.

(11) For the purposes of subsection (10), proceedings against the accused are taken to be concluded if—

(a) a plea of guilty is recorded against the accused,

(b) the accused is acquitted,

(d) the accused is convicted and does not appeal against the conviction before expiry of the time allowed for such an appeal,

(e) the accused is convicted and appeals against the conviction before the expiry of the time allowed for such an appeal,

(f) the proceedings are deserted pro loco et tempore for any reason and no further trial diet is appointed, or

(g) the indictment or complaint falls or is for any other reason not brought to trial, the diet is not continued, adjourned or postponed and no further proceedings are in contemplation.

Appeals against rulings under section 128

130

(1) The prosecutor or the accused may, within the period of 7 days beginning with the day on which a ruling is made under section 128, appeal to the High Court against the ruling.

(2) Where an appeal is brought under subsection (1), the court of first instance or the High Court may—

(a) postpone any trial diet that has been appointed for such period as it thinks appropriate,

(b) adjourn or further adjourn any hearing for such period as it thinks appropriate,

(c) direct that any period of postponement or adjournment under paragraph (a) or (b) or any part of such period is not to count toward any time limit applying in the case.

(3) In disposing of an appeal under subsection (1), the High Court may—

(a) affirm the ruling, or

(b) remit the case back to the court of first instance with such directions as the High Court thinks appropriate.

(4) This section does not affect any other right of appeal which any party may have in relation to a ruling under section 128.

Effect of guilty plea

131

(1) This section applies where—

(a) by virtue of section 121(2)(b), 123(2)(b), 124(2)(b), 125(4)(b) or 126(6)(b) the prosecutor is required to disclose information to an accused, but

(b) before the prosecutor does so, a plea of guilty is recorded against the accused.

(2) The prosecutor need not comply with the requirement in so far as it relates to the disclosure of information which but for that plea would have been likely to have formed part of the evidence to be led by the prosecutor in the proceedings against the accused.

(3) Subsections (1) and (2) cease to apply if the accused withdraws the plea of guilty.

Disclosure after conclusion of proceedings at first instance

Sections 133 to 140: interpretation

132

In sections 133 to 140—

“appellant”, in relation to appellate proceedings, includes a person authorised by an order under section 303A(4) of the 1995 Act to institute or continue the proceedings,

“appellate proceedings” means—an appeal under section 106(1)(a) or (f) of the 1995 Act which brings under review an alleged miscarriage of justice,an appeal under paragraph (b), (ba), (bb), (c), (d), (db) or (dc) of subsection (1) of section 106 of the 1995 Act which brings under review in accordance with subsection (3)(a) of that section an alleged miscarriage of justice,an appeal under section 175(2)(a) or (d) of the 1995 Act which brings under review an alleged miscarriage of justice,an appeal under paragraph (b), (c) or (cb) of subsection (2) of section 175 of the 1995 Act which brings under review an alleged miscarriage of justice which is based on the type of miscarriage described in subsection (5) of that section,an appeal to the Supreme Court against a determination by the High Court of Justiciary of a devolution issue,an appeal to the Supreme Court against a determination by the High Court of Justiciary of a compatibility issue (within the meaning of section 288ZA of the Criminal Procedure (Scotland) Act 1995),an appeal against conviction by bill of suspension under section 191(1) of the 1995 Act,an appeal against conviction by bill of advocation,a petition to the nobile officium in respect of a matter arising out of criminal proceedings which brings under review an alleged miscarriage of justice which is based on the existence and significance of new evidence,an appeal under section 62(1)(b) of the 1995 Act against a finding under section 55(2) of that Act,the referral to the High Court of Justiciary under section 194B of the 1995 Act of—a conviction, ora finding under section 55(2) of that Act.

Duty to disclose after conclusion of proceedings at first instance

133

(1) This section applies where appellate proceedings are instituted in relation to an appellant.

(2) As soon as practicable after the relevant act the prosecutor must—

(a) review all information of which the prosecutor is aware that relates to the grounds of appeal in the appellate proceedings, and

(b) disclose to the appellant any information that falls within subsection (3).

(3) Information falls within this subsection if it is—

(a) information that the prosecutor was required by virtue of section 121(2)(b) or 123(2)(b) to disclose in the earlier proceedings but did not disclose,

(b) information to which, during the earlier proceedings, the prosecutor considered paragraph (a) or (b) of section 121(3) did not apply but to which the prosecutor now considers one or both of those paragraphs would apply, or

(c) information of which the prosecutor has become aware since the disposal of the earlier proceedings that, had the prosecutor been aware of it during those proceedings, the prosecutor would have been required to disclose by virtue of section 121(2)(b) or 123(2)(b).

(4) The prosecutor need not disclose under subsection (2) anything that the prosecutor has already disclosed to the appellant.

(5) In this section—

“earlier proceedings”, in relation to appellate proceedings, means the proceedings to which the appellate proceedings relate,

“relevant act” means—in relation to proceedings of the type mentioned in paragraph (a) or (b) of the relevant definition, the granting under section 107(1)(a) of the 1995 Act of leave to appeal,in relation to proceedings of the type mentioned in paragraph (c) or (d) of the relevant definition, the granting under section 180(1)(a) or, as the case may be, 187(1)(a) of that Act of leave to appeal,in relation to proceedings of the type mentioned in paragraph (e) of the relevant definition, the granting of leave to appeal by the High Court of Justiciary or, as the case may be, the Supreme Court,in relation to proceedings of the type mentioned in paragraph (f) of the relevant definition—if leave to appeal is required, the granting under section 191(2) of that Act of leave to appeal,if leave to appeal is not required, service on the prosecutor under the relevant rule of a certified copy of the bill of suspension and the interlocutor granting first order for service,in relation to proceedings of the type mentioned in paragraph (g) of the relevant definition, service on the prosecutor under the relevant rule of a certified copy of the bill of advocation and the interlocutor granting first order for service,in relation to proceedings of the type mentioned in paragraph (h) of the relevant definition, service on the prosecutor under the relevant rule of a certified copy of the petition and the interlocutor granting first order for service,in relation to proceedings of the type mentioned in paragraph (i) of the relevant definition, the lodging of the appeal,in relation to proceedings of the type mentioned in paragraph (j) of the relevant definition, the lodging of the grounds of appeal by the person to whom the referral relates,

“relevant definition” means the definition of appellate proceedings in section 132,

“relevant rule” means rule 29A.1(3) of the Criminal Procedure Rules 1996 (S.I. 1996/513).

Continuing duty of prosecutor

134

(1) This section applies where the prosecutor has complied with section 133(2) in relation to an appellant.

(2) During the relevant period, the prosecutor must—

(a) from time to time review all information of which the prosecutor is aware that relates to the grounds of appeal in the appellate proceedings which relate to the appellant, and

(b) disclose to the appellant any information that falls within section 133(3).

(3) The prosecutor need not disclose under subsection (2) anything that the prosecutor has already disclosed to the appellant.

(4) In subsection (2), “relevant period” means the period—

(a) beginning with the prosecutor's compliance with section 133(2), and

(b) ending with the relevant conclusion.

(5) In subsection (4), “relevant conclusion” means—

(a) in relation to proceedings of the type mentioned in paragraph (a) or (b) of the relevant definition—

(i) the lodging under section 116(1) of the 1995 Act of a notice of abandonment, or

(ii) the disposal of the appeal under section 118 of that Act,

(b) in relation to proceedings of the type mentioned in paragraph (c) or (d) of the relevant definition—

(i) the disposal of the appeal under section 183(1)(b) to (d) of that Act,

(ii) the abandonment of the appeal under section 184(1) of that Act,

(iii) the setting aside of the conviction or sentence or, as the case may be, conviction and sentence under section 188(1) of that Act, or

(iv) the disposal of the appeal under section 190(1) of that Act,

(c) in relation to proceedings of the type mentioned in paragraph (e), (f), (g) or (h) of the relevant definition, the disposal or abandonment of the appeal,

(d) in relation to proceedings of the type mentioned in paragraph (i) of the relevant definition, the disposal of the appeal under section 62(6) of that Act or the abandonment of the appeal,

(e) in relation to proceedings of the type mentioned in paragraph (j) of the relevant definition—

(i) if the referral or finding is being treated as if it were an appeal under Part 8 of that Act, the conclusion mentioned in paragraph (a) above,

(ii) if the referral or finding is being treated as if it were an appeal under Part 10 of that Act, the conclusion mentioned in paragraph (b) above or, where the referral or finding proceeds by way of bill of suspension, bill of advocation or petition to the nobile officium, paragraph (c) above.

(6) In this section, “relevant definition” has the meaning given by section 133(5).

Application to prosecutor for further disclosure

135

(1) This section applies where—

(a) the prosecutor has complied with section 133(2) in relation to an appellant, and

(b) the appellant lodges a further disclosure request—

(i) during the preliminary period, or

(ii) if the court on cause shown allows it, after the preliminary period but before the relevant conclusion.

(2) A further disclosure request must set out—

(a) by reference to the grounds of appeal, the nature of the information that the appellant wishes the prosecutor to disclose, and

(b) the reasons why the appellant considers that disclosure by the prosecutor of any such information is necessary.

(3) As soon as practicable after receiving a copy of the further disclosure request the prosecutor must—

(a) review any information of which the prosecutor is aware that relates to the request, and

(b) disclose to the appellant any of that information that falls within section 133(3).

(4) The prosecutor need not disclose under subsection (3)(b) anything that the prosecutor has already disclosed to the appellant.

(5) In this section—

“preliminary period”, in relation to the appellate proceedings concerned, means the period beginning with the relevant act and ending with the beginning of the hearing of the appellate proceedings,

“relevant act” has the meaning given by section 133(5),

“relevant conclusion” has the meaning given by section 134(5).

Further duty of prosecutor: conviction upheld on appeal

136

(1) This section applies where—

(a) in an appeal to the High Court of Justiciary, the High Court upholds the conviction of a person, and

(b) after the conclusion of the appeal the prosecutor becomes aware of—

(i) information that the prosecutor was required by virtue of section 121(2)(b) or 123(2)(b) to disclose in the earlier proceedings but did not disclose, or

(ii) information that falls within section 133(3) which would have related to the grounds of appeal but was not disclosed.

(2) As soon as practicable after becoming aware of the information the prosecutor must disclose it to the person.

(3) The prosecutor need not disclose under subsection (2) anything that the prosecutor has already disclosed to the person.

(4) Nothing in this section requires the prosecutor to carry out a review of information of which the prosecutor is aware.

(5) In this section, “earlier proceedings” has the meaning given by section 133(5).

Further duty of prosecutor: convicted persons

137

(1) This section applies where—

(a) a person has been convicted,

(b) after conviction the prosecutor becomes aware of information that the prosecutor was required by virtue of section 121(2)(b) or 123(2)(b) to disclose in the proceedings in which the person was convicted but did not disclose, and

(2) As soon as practicable after becoming aware of the information the prosecutor must disclose it to the person.

(3) If the person institutes appellate proceedings in relation to the conviction, the prosecutor need not comply with the duty imposed by subsection (2) during the appropriate period.

(4) The prosecutor need not disclose under subsection (2) anything that the prosecutor has already disclosed to the person.

(5) Nothing in this section requires the prosecutor to carry out a review of information of which the prosecutor is aware.

(6) In this section—

“appropriate period”, in relation to appellate proceedings, means the period beginning with the relevant act and ending with the relevant conclusion,

“relevant act” has the meaning given by section 133(5),

“relevant conclusion” has the meaning given by section 134(5).

Further duty of prosecutor: appeal against acquittal

138

(1) This section applies where—

(a) the prosecutor appeals against the acquittal of a person, and

(b) after lodging the appeal the prosecutor becomes aware of information which relates to the appeal and falls within section 133(3).

(2) As soon as practicable after becoming aware of the information the prosecutor must disclose it to the person.

(3) The prosecutor need not disclose under subsection (2) anything that the prosecutor has already disclosed to the person.

(4) The prosecutor ceases to be subject to the duty imposed by subsection (2) on the disposal of the appeal by the High Court of Justiciary.

(5) Nothing in this section requires the prosecutor to carry out a review of information of which the prosecutor is aware.

Court rulings on disclosure: appellate proceedings

Application by appellant for ruling on disclosure

139

(1) This section applies where the appellant—

(a) has made a further disclosure request under section 135, and

(b) considers that the prosecutor has failed, in responding to the request, to disclose to the appellant an item of information falling within section 133(3) (the “information in question”).

(2) The appellant may apply to the court for a ruling on whether the information in question falls within section 133(3).

(3) An application under subsection (2) is to be made in writing and must set out—

(a) where the appellant is or was charged with more than one offence, the charge or charges to which the application relates,

(b) a description of the information in question, and

(4) On receiving an application under subsection (2), the court must appoint a hearing at which the application is to be considered and determined.

(5) However, the court may dispose of the application without appointing a hearing if the court considers that the application does not—

(a) comply with subsection (3), or

(b) otherwise disclose any reasonable grounds for considering that the information in question falls within section 133(3).

(6) At a hearing appointed under subsection (4), the court must give the prosecutor and the appellant an opportunity to be heard before determining the application.

(7) On determining the application, the court must—

(a) make a ruling on whether the information in question, or any part of the information in question, falls within section 133(3), and

(b) where the appellant is or was charged with more than one offence, specify the charge or charges to which the ruling relates.

(8) In this section, “the court” means the court before which the appellant's appeal is brought.

(9) Except where it is impracticable to do so, the application is to be assigned to the judges who are to hear the appellant's appeal.

Review of ruling under section 139

140

(1) This section applies where—

(a) the court has made a ruling under section 139 that an item of information (the “information in question”) does not fall within section 133(3), and

(b) during the relevant period—

(i) the appellant becomes aware of information (“secondary information”) that was unavailable to the court at the time it made its ruling, and

(ii) the appellant considers that, had the secondary information been available to the court at that time, it would have made a ruling that the information in question does fall within section 133(3).

(2) The appellant may apply to the court which made the ruling for a review of the ruling.

(3) An application under subsection (2) is to be made in writing and must set out—

(a) where the appellant is or was charged with more than one offence, the charge or charges to which the application relates,

(b) a description of the information in question and the secondary information, and

(4) On receiving an application under subsection (2), the court must appoint a hearing at which the application is to be considered and determined.

(5) However, the court may dispose of the application without appointing a hearing if the court considers that the application does not—

(a) comply with subsection (3), or

(b) otherwise disclose any reasonable grounds for considering that the information in question falls within section 133(3).

(6) At a hearing appointed under subsection (4), the court must give the prosecutor and the appellant an opportunity to be heard before determining the application.

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