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

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

(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 the information in question, or any part of the information in question, falls within section 133(3), and

(ii) where the appellant is or was 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 judges 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 appellant, means the period—

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

(b) ending with the relevant conclusion.

(11) In subsection (10), “relevant conclusion” has the meaning given by section 134(5).

Applications to court: orders preventing or restricting disclosure

Application for section 145 order

141

(1) This section applies where the conditions in subsection (2), (3) or (3A) are met.

(2) The conditions are that—

(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 an item of information to an accused,

(b) section 121(3)(a) or (b) applies to the information, and

(3) The conditions are that—

(a) by virtue of section 133(2)(b), 134(2)(b), 135(3)(b), 136(2), 137(2) or 138(2) the prosecutor is required to disclose an item of information to an appellant or, as the case may be, a person,

(b) where there are proceedings, the information is not likely to form part of the evidence to be led by the prosecutor in the proceedings, and

(3A) The conditions are that—

(a) by virtue of section 140B(2)(b), 140C(2) or 140D(3)(b) the prosecutor is required to disclose an item of information to a respondent,

(b) the information is not likely to form part of the evidence to be led or relied on by the prosecutor in the proceedings, and

(4) This subsection applies if disclosure of the item of information would be likely to cause a real risk of substantial harm or damage to the public interest.

(5) The prosecutor must apply to the court for an order under section 145 (a “section 145 order”).

Application for non-notification order or exclusion order

142

(1) This section applies where the prosecutor is required by section 141(5) to apply to the court for a section 145 order.

(2) If the application for a section 145 order relates to solemn proceedings (whether continuing or concluded or to 2011 Act proceedings), the prosecutor may also apply to the court for—

(a) a non-notification order and an exclusion order, or

(b) an exclusion order (but not a non-notification order).

(3) If the application for a section 145 order relates to summary proceedings (whether continuing or concluded), the prosecutor may also apply to the court for an exclusion order.

(4) A non-notification order is an order under section 143 prohibiting notice being given to the accused of—

(a) the making of an application for—

(i) the section 145 order to which the non-notification order relates,

(ii) the non-notification order, and

(iii) an exclusion order, and

(b) the determination of those applications.

(5) An exclusion order is an order under section 143 or 144 prohibiting the accused from attending or making representations in proceedings for the determination of the application for a section 145 order to which the exclusion order relates.

(6) Subsection (7) applies where the prosecutor applies—

(a) by virtue of subsection (2)(a) for a non-notification order and an exclusion order, or

(b) by virtue of subsection (2)(a) or (b) for an exclusion order.

(7) Before determining in accordance with section 145 the application for the section 145 order, the court must—

(a) in accordance with section 143, determine any applications for a non-notification order and an exclusion order,

(b) in accordance with section 144, determine any application for an exclusion order.

(8) In this section and sections 143 to 145—

“accused” includes— where subsection (5) of section 141 applies by virtue of the conditions in subsection (3) of that section being met, the appellant or other person to whom the prosecutor is required to disclose the item of information, andwhere subsection (5) of section 141 applies by virtue of the conditions in subsection (3A) of that section being met, the respondent,

“ appellant ” has the meaning given by section 132.

“respondent” has the meaning given by section 140A.

Application for non-notification order and exclusion order

143

(1) This section applies where the prosecutor applies for a non-notification order and an exclusion order.

(2) On receiving the application, the court must appoint a hearing to determine whether a non-notification order should be made.

(3) The accused is not to be notified of—

(a) the applications for the section 145 order, non-notification order and exclusion order, or

(b) the hearing appointed under subsection (2).

(4) The accused is not to be given the opportunity to be heard or be represented at the hearing.

(5) If, after giving the prosecutor an opportunity to be heard, the court is satisfied that the conditions in subsection (6) are met, the court may make a non-notification order.

(6) Those conditions are—

(a) that disclosure to the accused of the making of the application for the section 145 order would be likely to cause a real risk of substantial harm or damage to the public interest, and

(b) that, having regard to all the circumstances, the making of a non-notification order would be consistent with the accused's receiving a fair trial.

(7) If the court makes a non-notification order it must also make an exclusion order.

(8) If the court refuses to make a non-notification order the court must appoint a hearing to determine the application for an exclusion order.

(9) If after giving the prosecutor and, subject to subsection (10), the accused an opportunity to be heard, the court is satisfied that the conditions in subsection (5) of section 144 are met, the court may make an exclusion order under subsection (4) of that section.

(10) On the application of the prosecutor the court may exclude the accused from the hearing appointed under subsection (8).

(11) In this section and sections 144 and 145, references to the accused's receiving a fair trial include—

(a) where subsection (5) of section 141 applies by virtue of the conditions in subsection (3) of that section being met, references to the appellant or other person to whom the prosecutor is required to disclose the item of information having received a fair trial, and

(b) where subsection (5) of section 141 applies by virtue of the conditions in subsection (3A) of that section being met, references to the respondent receiving a fair hearing in the 2011 Act proceedings.

Application for exclusion order

144

(1) This section applies where by virtue of section 142(2)(b) or (3) the prosecutor applies for an exclusion order (but not a non-notification order).

(2) On receiving the application the court must appoint a hearing.

(3) On the application of the prosecutor the court may exclude the accused from the hearing.

(4) If after giving the prosecutor and, subject to subsection (3), the accused an opportunity to be heard on the applications for the exclusion order and the section 145 order to which it relates the court is satisfied that the conditions in subsection (5) are met, the court may make an exclusion order.

(5) Those conditions are—

(a) that disclosure to the accused of the nature of the information to which the application for the section 145 order relates would be likely to cause a real risk of substantial harm or damage to the public interest, and

(b) that, having regard to all the circumstances, the making of an exclusion order would be consistent with the accused's receiving a fair trial.

Application for section 145 order: determination

145

(1) This section applies where—

(a) the prosecutor applies for a section 145 order, and

(b) any application for a non-notification order or an exclusion order has been determined by the court.

(2) The court must—

(a) consider the item of information to which the application for a section 145 order relates,

(b) give the prosecutor and (if the court has not made an exclusion order) the accused the opportunity to be heard, and

(i) where the application for the section 145 order is made by virtue of section 141(2), whether the conditions in subsection (3) apply, ...

(ii) where the application for the section 145 order is made by virtue of section 141(3), whether the conditions in subsection (4) apply or

(ii) where the application for the section 145 order is made by virtue of section 141(3A), whether the conditions in subsection (4A) apply,

(d) if the court determines that the conditions in subsection (3), (4) or, as the case may be, (4A) apply, determine whether subsection (5) applies.

(3) The conditions are—

(a) that 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 the item of information,

(b) that section 121(3)(a) or (b) applies to the information,

(c) that if the item of information were to be disclosed there would be a real risk of substantial harm or damage to the public interest,

(d) that withholding the item of information would be consistent with the accused's receiving a fair trial, and

(e) that the public interest would be protected only if a section 145 order were to be made.

(4) The conditions are—

(a) that by virtue of section 133(2)(b), 134(2)(b), 135(3)(b), 136(2), 137(2) or 138(2) the prosecutor is required to disclose an item of information to an appellant or, as the case may be, a person,

(b) where there are proceedings, the information is not likely to form part of the evidence to be led by the prosecutor in the proceedings,

(c) that if the item of information were to be disclosed there would be a real risk of substantial harm or damage to the public interest,

(d) that withholding the item of information is not inconsistent with the person's having received a fair trial in the proceedings to which the item relates, and

(e) that the public interest would be protected only if a section 145 order were to be made.

(4A) The conditions are—

(a) that by virtue of section 140B(2)(b), 140C(2) or 140D(3)(b) the prosecutor is required to disclose an item of information to a respondent,

(b) the information is not likely to form part of the evidence to be led or relied on by the prosecutor in the proceedings,

(c) that if the item of information were to be disclosed there would be a real risk of substantial harm or damage to the public interest,

(d) that withholding the item of information is not inconsistent with the respondent's receiving a fair hearing in the 2011 Act proceedings to which the item relates, and

(e) that the public interest would be protected only if a section 145 order were to be made.

(5) This subsection applies if the court considers that the item of information could be disclosed or partly disclosed in such a way that—

(a) the condition in paragraph (c) of subsection (3), paragraph (c) of subsection (4) or, as the case may be, paragraph (c) of subsection (4A) would not be met, and

(b) the disclosure (or partial disclosure) would be consistent with the accused's receiving a fair trial.

(6) If the court considers that subsection (3), (4) or, as the case may be, (4A) (but not subsection (5)) applies, it may make a section 145 order preventing disclosure of the information.

(7) If the court considers that subsection (5) applies, it may make a section 145 order requiring the information to be disclosed or partly disclosed to the accused in the manner specified in the order.

(8) For the purposes of subsection (5) the ways in which the item of information might be disclosed or partly disclosed include in particular—

(a) providing the information after (whether by redaction or otherwise) removing or obscuring parts of it,

(b) providing extracts or summaries of the information or part of it.

Orders preventing or restricting disclosure: Secretary of State

Order preventing or restricting disclosure: application by Secretary of State

146

(1) Where the condition in subsection (2), (3), (4) or (4A) is met in relation to an item of information that the prosecutor proposes to disclose, the Secretary of State may apply to the court for an order under this section (a “section 146 order”) in relation to the item of information.

(2) The condition is that the prosecutor proposes to disclose to the accused information which the prosecutor is required to disclose by virtue of section 121(2)(b), 123(2)(b), 124(2)(b), 125(4)(b) or 126(6)(b).

(3) The condition is that the prosecutor proposes to disclose to an appellant or, as the case may be, a person information which the prosecutor is required to disclose by virtue of section 133(2)(b), 134(2)(b), 135(3)(b), 136(2), 137(2) or 138(2).

(4) The condition is that the prosecutor proposes to disclose to an accused, appellant or person to whom section 136, 137 or 138 applies information which the prosecutor is not required to disclose by virtue of this Part.

(4A) The condition is that the prosecutor proposes to disclose to a respondent information which the prosecutor is required to disclose by virtue of section 140B(2)(b), 140C(2) or 140D(3)(b).

(5) If the Secretary of State also makes an application in accordance with subsection (2) or (3) of section 147, the court must comply with subsections (6) and (7) of that section.

(6) Where an application is made under subsection (1), the court must—

(a) consider the item of information to which the application relates,

(b) give the Secretary of State and the prosecutor the opportunity to be heard,

(c) if the application relates to information which the prosecutor is required to disclose by virtue of subsection (2), (3) or (4A) and a non-attendance order has not been made, give the accused the opportunity to be heard,

(d) determine—

(i) where the application for the section 146 order is made by virtue of subsection (2), whether the conditions in subsection (7) apply, ...

(ii) where the application for the section 146 order is made by virtue of subsection (3) or (4), whether the conditions in subsection (8) apply, or

(iii) where the application for the section 146 order is made by virtue of subsection (4A), whether the conditions in subsection (8A) apply, and

(e) if the court determines that the conditions in subsection (7) , (8) or, as the case may be, (8A) apply, determine whether subsection (9) applies.

(7) The conditions are—

(a) that if the item of information were to be disclosed there would be a real risk of substantial harm or damage to the public interest,

(b) that withholding the item of information would be consistent with the accused's receiving a fair trial, and

(c) that the public interest would be protected only if a section 146 order of the type mentioned in subsection (10) were to be made.

(8) The conditions are—

(a) in the case of an application made by virtue of subsection (3), that by virtue of section 133(2)(b), 134(2)(b), 135(3)(b), 136(2), 137(2) or 138(2) the prosecutor is required to disclose an item of information to an appellant or, as the case may be, a person,

(b) that if the item of information were to be disclosed there would be a real risk of substantial harm or damage to the public interest,

(c) that withholding the item of information is not inconsistent with the person's having received a fair trial in the proceedings to which the item relates, and

(d) that the public interest would be protected only if a section 146 order of the type mentioned in subsection (10) were to be made.

(8A) The conditions are—

(a) that by virtue of section 140B(2)(b), 140C(2) or 140D(3)(b) the prosecutor is required to disclose an item of information to a respondent,

(b) that if the item of information were to be disclosed there would be a real risk of substantial harm or damage to the public interest,

(c) that withholding the item of information is not inconsistent with the respondent's receiving a fair hearing in the 2011 Act proceedings to which the item relates, and

(d) that the public interest would be protected only if a section 146 order of the type mentioned in subsection (10) were to be made.

(9) This subsection applies if the court considers that the item of information could be disclosed or partly disclosed in such a way that—

(a) the condition in paragraph (a) of subsection (7), paragraph (b) of subsection (8) or, as the case may be, paragraph (b) of subsection (8A) would not be met, and

(b) the disclosure (or partial disclosure) would be consistent with the accused's receiving a fair trial.

(10) If the court considers that subsection (7), (8) or, as the case may be (8A) (but not subsection (9)) applies, it may make a section 146 order preventing disclosure of the information.

(11) If the court considers that subsection (9) applies, it may make a section 146 order requiring the information to be disclosed or partly disclosed to the accused in the manner specified in the order.

(12) For the purposes of subsection (11) the order may in particular specify that—

(a) the item of information be disclosed after removing or obscuring parts of it (whether by redaction or otherwise),

(b) extracts or summaries of the item of information (or part of it) be disclosed instead of the item of information.

(13) In this section and sections 147 to 149—

“accused” includes— where subsection (3) or (4) applies, the appellant or other person to whom the prosecutor is required to disclose the item of information, andwhere subsection (4A) applies, the respondent,

“appellant” has the meaning given by section 132.

“respondent” has the meaning given by section 140A.

(14) In this section and sections 147 to 149, references to the accused's receiving a fair trial include—

(a) where subsection (3) or (other than in relation to an accused) (4) applies, references to the appellant or other person to whom the prosecutor is required to disclose the item of information having received a fair trial, and

(b) where subsection (4A) applies, references to the respondent receiving a fair hearing in the 2011 Act proceedings.

Application for ancillary orders: Secretary of State

147

(1) This section applies where the Secretary of State applies for a section 146 order.

(2) If the application under section 146 relates to solemn proceedings (whether continuing or concluded) or to 2011 Act proceedings, the Secretary of State may also apply to the court for—

(a) a restricted notification order and a non-attendance order, or

(b) a non-attendance order (but not a restricted notification order).

(3) If the application under section 146 relates to summary proceedings (whether continuing or concluded), the Secretary of State may also apply to the court for a non-attendance order.

(4) A restricted notification order is an order under section 148 prohibiting notice being given to the accused of—

(a) the making of an application for—

(i) the section 146 order to which the restricted notification order relates,

(ii) the restricted notification order, and

(iii) a non-attendance order, and

(b) the determination of those applications.

(5) A non-attendance order is an order under section 148(7) or 149 prohibiting the accused from attending or making representations in proceedings for the determination of the application for the section 146 order to which the non-attendance order relates.

(6) Subsection (7) applies where the Secretary of State applies—

(a) by virtue of subsection (2)(a) for a restricted notification order and a non-attendance order, or

(b) by virtue of subsection (2)(a) or (b) for a non-attendance order.

(7) Before determining the application for the section 146 order, the court must—

(a) in accordance with section 148, determine any application for a restricted notification order and a non-attendance order,

(b) in accordance with section 149, determine any application for a non-attendance order.

Application for restricted notification order and non-attendance order

148

(1) This section applies where by virtue of section 147(2)(a) the Secretary of State applies for a restricted notification order and a non-attendance order.

(2) On receiving the application, the court must appoint a hearing to determine whether a restricted notification order should be made.

(3) The accused is not to be notified of—

(a) the applications for the section 146 order, the restricted notification order and the non-attendance order, or

(b) the hearing appointed under subsection (2).

(4) The accused is not to be given the opportunity to be heard or be represented at the hearing.

(5) If, after giving the Secretary of State and the prosecutor an opportunity to be heard, the court is satisfied that the conditions in subsection (6) are met, the court may make a restricted notification order.

(6) Those conditions are—

(a) that disclosure to the accused of the making of the application for the section 146 order would be likely to cause a real risk of substantial harm or damage to the public interest, and

(b) that, having regard to all the circumstances, the making of a restricted notification order would be consistent with the accused's receiving a fair trial.

(7) If the court makes a restricted notification order, it must also make a non-attendance order.

(8) If the court refuses to make a restricted notification order, the court must appoint a hearing to determine the application for a non-attendance order.

(9) If after giving the Secretary of State, the prosecutor and, subject to subsection (10), the accused an opportunity to be heard, the court is satisfied that the conditions in subsection (5) of section 149 are met, the court may make a non-attendance order under subsection (4) of that section.

(10) On the application of the Secretary of State the court may exclude the accused from the hearing appointed under subsection (8).

Application for non-attendance order

149

(1) This section applies where by virtue of section 147(2)(b) the Secretary of State applies for a non-attendance order (but not a restricted notification order).

(2) On receiving the application, the court must appoint a hearing.

(3) On the application of the Secretary of State the court may exclude the accused from the hearing.

(4) If after giving the Secretary of State, the prosecutor and, if not excluded under subsection (3), the accused an opportunity to be heard the court is satisfied that the conditions in subsection (5) are met, the court may make a non-attendance order.

(5) Those conditions are—

(a) that disclosure to the accused of the nature of the information to which the application for the section 146 order relates would be likely to cause a real risk of substantial harm or damage to the public interest, and

(b) that, having regard to all the circumstances, the making of a non-attendance order would be consistent with the accused's receiving a fair trial.

Special counsel

150

(1) This section applies where the court is determining—

(a) an application for a non-notification order,

(b) an application for an exclusion order,

(d) an application for a restricted notification order,

(e) an application for a non-attendance order,

(f) an application for a section 146 order,

(g) an application for review of the grant or refusal of any of those orders,

(h) an appeal relating to any of those orders.

(2) If the condition in subsection (3) is met, the court may appoint a person (“special counsel”) to represent the interests of the accused in relation to the determination of the application, review or appeal.

(3) The condition is that the court considers that the appointment of special counsel is necessary to ensure that the accused receives a fair trial.

(4) Before deciding whether to appoint special counsel in a non-notification case, the court—

(a) must give the prosecutor an opportunity to be heard, but

(b) must not give the accused an opportunity to be heard.

(5) Before deciding whether to appoint special counsel in a restricted notification case, the court—

(a) must give the prosecutor and the Secretary of State an opportunity to be heard,

(b) must not give the accused an opportunity to be heard.

(6) Before deciding whether to appoint special counsel in any case other than a non-notification case or a restricted notification case, the court must give all the parties an opportunity to be heard.

(7) The prosecutor may appeal to the High Court against a decision of the court not to appoint special counsel in any case.

(8) The Secretary of State may appeal to the High Court against a decision of the court not to appoint special counsel in a restricted notification case.

(9) The accused may appeal to the High Court against a decision not to appoint special counsel in any case other than a non-notification case or a restricted notification case.

(10) In this section and section 152—

“ accused ” includes— appellant or, where the order relates to section 136(2), 137(2) or 138(2), other person to whom the section concerned applies, andrespondent,

“appellant” has the meaning given by section 132,

“non-notification case” means a case where the court is determining—an application for a non-notification order,an application for review of the grant or refusal of a non-notification order,an appeal relating to such an order,

“ respondent ” has the meaning given by section 140A,

“restricted notification case” means a case where the court is determining—an application for a restricted notification order,an application for review of the grant or refusal of a restricted notification order,an appeal relating to such an order.

Persons eligible for appointment as special counsel

151

The court may appoint a person as special counsel under section 150(2) only if the person is a solicitor or advocate.

Role of special counsel

152

(1) Special counsel's duty is, in relation to the determination of the relevant application or appeal, to act in the best interests of the accused with a view only to ensuring that the accused receives a fair trial.

(2) Special counsel—

(a) is entitled to see the confidential information, but

(b) must not disclose any of the confidential information to the accused or the accused's representative (if any).

(3) Special counsel appointed in a non-notification case or a restricted notification case must not—

(a) disclose to the accused or the accused's representative (if any) the making of the relevant application or appeal, or

(b) otherwise communicate with the accused or the accused's representative (if any) about the relevant application or appeal.

(4) Special counsel appointed in any case other than a non-notification case or a restricted notification case must not communicate with the accused or the accused's representative (if any) about the relevant application or appeal except—

(a) with the permission of the court, and

(b) where permission is given, in accordance with such conditions as the court may impose.

(5) Before deciding whether to grant permission, the court must give—

(a) the prosecutor, and

(b) in the case of an application for a section 146 order or a non-attendance order, the Secretary of State,

an opportunity to be heard.

(5A) In subsection (1), the reference to the accused receiving a fair trial includes reference to the respondent receiving a fair hearing in the 2011 Act proceedings.

(6) In this section—

“the confidential information” means—the information to which the relevant application or appeal relates, anda copy of the relevant application or appeal,

“relevant application or appeal” means the application or appeal referred to in section 150(1) in respect of which special counsel is appointed.

Appeals

153

(1) The prosecutor may appeal to the appropriate Appeal Court against—

(a) the making of a section 145 order under section 145(7),

(b) the making of a section 146 order,

(d) the making of a non-attendance order,

(e) the refusal of an application for a non-notification order,

(f) the refusal of an application for an exclusion order, or

(g) the refusal of an application for a section 145 order.

(2) The accused may appeal to the appropriate Appeal Court against the making of—

(a) an exclusion order under section 144(4),

(b) a section 145 order,

(d) a non-attendance order.

(3) The Secretary of State may appeal to the appropriate Appeal Court against—

(a) the making of a section 146 order under section 146(11),

(b) the refusal of an application for a restricted notification order,

(d) the refusal of an application for a section 146 order.

(4) If special counsel was appointed in relation to an application for a non-notification order, special counsel may appeal to the appropriate Appeal Court against the making of—

(a) the non-notification order, or

(b) a section 145 order in relation to the same item of information.

(5) If special counsel was appointed in relation to an application for a restricted notification order, special counsel may appeal to the appropriate Appeal Court against the making of—

(a) the restricted notification order, or

(b) a section 146 order in relation to the same item of information.

(6) An appeal must be lodged not later than 7 days after the decision appealed against.

(7) The prosecutor is entitled to be heard in any appeal under this section.

(8) The accused is entitled to be heard in an appeal under—

(a) subsection (1)(a) or (g) or (2)(b) unless—

(i) a non-notification order has been made, or

(ii) an exclusion order has been made,

(b) subsection (1)(b), (2)(c) or (3)(a) or (d) unless—

(i) a restricted notification order has been made, or

(ii) a non-attendance order has been made,

(c) subsection (1)(d), (2)(d) or (3)(c) unless the court, on the application of the Secretary of State, excludes the accused from the hearing,

(d) subsection (1)(f) or (2)(a) unless the court, on the application of the prosecutor excludes the accused from the hearing.

(9) The Secretary of State is entitled to be heard in an appeal under subsection (1)(b), (c) or (d), (2)(c) or (d) or (5).

(10) In this section—

“ accused ” includes— appellant or, where the order relates to section 136(2), 137(2) or 138(2), other person to whom the section concerned applies, andrespondent,

“appellant” has the meaning given by section 132.

“appropriate Appeal Court” means—in the case of an appeal under this section in proceedings on indictment, the High Court,in the case of an appeal under this section in summary proceedings, the Sheriff Appeal Court,

“ respondent ” has the meaning given by section 140A.

Prohibition on disclosure pending determination of certain appeals

154

(1) Subsection (2) applies where—

(a) the prosecutor appeals to the High Court under subsection (1)(a), (b) or (g) of section 153, or

(b) the Secretary of State appeals to the High Court under subsection (3)(a) or (d) of that section.

(2) Pending the determination or abandonment of the appeal, the prosecutor must not disclose the item of information to which the appeal relates.

Review of section 145 and 146 orders

Review of section 145 order

155

(1) This section applies where—

(a) the court makes a section 145 order, and

(b) during the relevant period the prosecutor or the accused becomes aware of information that was unavailable to the court at the time when the order was made.

(2) The prosecutor or, as the case may be, special counsel or the accused may apply to the court to review the section 145 order.

(3) Except in the case mentioned in subsection (4), the same persons are entitled to be heard on the application for review as were entitled to be heard on the application for the section 145 order.

(4) If—

(a) a non-notification order was granted in relation to the section 145 order which is under review, and

(b) the court is satisfied that the conditions in section 143(6) are met,

the court may, where the prosecutor or, as the case may be, special counsel applies for the review, make an order prohibiting notification being given to the accused of the application for review.

(5) If—

(a) an exclusion order was granted in relation to the section 145 order which is under review, and

(b) the court is satisfied that the conditions in section 144(5) are met,

the court may, where the prosecutor or, as the case may be, special counsel or the accused applies for the review, exclude the accused from the review.

(6) If the court is not satisfied that the conditions mentioned in section 145(3) or (4A) are met, the court may—

(a) recall the section 145 order, or

(b) recall the section 145 order and make an order requiring disclosure to the specified extent.

(7) Nothing in this section affects any right of appeal in relation to the section 145 order.

(8) In this section—

“accused” includes— appellant or, where the order relates to section 136(2), 137(2) or 138(2), other person to whom the section concerned applies, andrespondent,

“relevant period”, in relation to an accused, means the period—beginning with the making of the section 145 order, andending with the conclusion of the proceedings against the accused,

“respondent” has the meaning given by section 140A,

“specified” means specified in the order of the court.

(9) For the purposes of this section, 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 proceedings are deserted pro loco et tempore for any reason and no further trial diet is appointed,

(f) 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,

(g) any appeal by the prosecutor is determined or abandoned, ...

(h) the accused is convicted and any appeal is determined or abandoned , or

(i) the 2011 Act proceedings are disposed of or abandoned.

(10) In its application to proceedings against an appellant or other person, subsection (9) is to be read as if paragraphs (a) to (f) were omitted.

(11) In its application to proceedings involving a respondent, subsection (9) is to be read as if paragraphs (a) to (h) were omitted.

Review of section 146 order

156

(1) This section applies where—

(a) the court makes a section 146 order, and

(b) during the relevant period the Secretary of State, the prosecutor, special counsel or the accused becomes aware of information that was unavailable to the court at the time when the order was made.

(2) The Secretary of State or, as the case may be, the prosecutor, special counsel or the accused may apply to the court to review the order.

(3) Except in the case mentioned in subsection (4), the same persons are entitled to be heard on the application for review as were entitled to be heard on the application for the order.

(4) If—

(a) a restricted notification order was granted in relation to the order which is under review, and

(b) the court is satisfied that the conditions in section 148(6) are met,

the court may, where the Secretary of State or, as the case may be, the prosecutor or special counsel applies for the review, make an order prohibiting notification of the application for review being given to the accused.

(5) If—

(a) a non-attendance order was granted in relation to the order which is under review, and

(b) the court is satisfied that the conditions in section 149(5) are met,

the court may, where the Secretary of State or, as the case may be, the prosecutor, special counsel or the accused applies for the review, exclude the accused from the review.

(6) If the court is not satisfied that the conditions mentioned in section 146(7) are met, the court may—

(a) recall the order which is under review, or

(b) recall the order which is under review and make an order requiring the information to be disclosed or partly disclosed to the accused in the specified manner.

(7) Nothing in this section affects any right of appeal in relation to the order which is under review.

(8) In this section—

“ accused ” includes— appellant or, where the order relates to section 136(2), 137(2) or 138(2), other person to whom the section concerned applies, andrespondent,

“appellant” has the meaning given by section 132,

“relevant period”, in relation to an accused, means the period—beginning with the making of the section 146 order, andending with the conclusion of the proceedings against the accused,

“ respondent ” has the meaning given by section 140A,

“specified” means specified in the order of the court.

(9) For the purposes of this section, 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 proceedings are deserted pro loco et tempore for any reason and no further trial diet is appointed,

(f) 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,

(g) any appeal by the prosecutor is determined or abandoned, ...

(h) the accused is convicted and any appeal is determined or abandoned or

(i) the 2011 Act proceedings are disposed of or abandoned.

(10) In its application to proceedings against an appellant or other person, subsection (9) is to be read as if paragraphs (a) to (f) were omitted.

(11) In its application to proceedings involving a respondent, subsection (9) is to be read as if paragraphs (a) to (h) were omitted.

Review by court of section 145 and 146 orders

157

(1) This section applies where the court makes a section 145 order or a section 146 order.

(2) During the relevant period, the court must from time to time consider in relation to each order whether, having regard to the information of which the court is aware, the order concerned continues to be appropriate.

(3) If the court considers that the order concerned might no longer be appropriate, the court must appoint a hearing to review the matter.

(4) In this section, “relevant period” has the same meaning as in section 155(8).

Applications and reviews: general

Applications and reviews: general provisions

158

(1) Subsection (3) applies in relation to—

(a) an application for an order mentioned in subsection (2), and

(b) a review relating to such an order.

(2) The orders are—

(a) a non-notification order,

(b) an exclusion order,

(d) a restricted notification order,

(e) a non-attendance order,

(f) a section 146 order.

(3) Except where it is impracticable to do so, the application or review is to be assigned in accordance with subsection (4).

(4) The application or, as the case may be, review is to be assigned—

(a) if the proceedings against the accused to which the application or review relates are continuing (or have concluded and there are no appellate proceedings), to the same justice of the peace, sheriff or, as the case may be, judge as has been (or is to be or was) assigned to the trial diet in those proceedings,

(b) if the appellate proceedings to which the application or review relates are continuing, to the same judge as has been (or is to be) assigned to those proceedings.

(c) if the 2011 Act proceedings to which the application or review relates are continuing, to the same judge or judges as have been (or are to be) assigned to those proceedings.

(5) The accused, appellant, other person or, as the case may be, respondent to whom the order relates is not entitled to see or be made aware of the contents of an application for—

(a) an order mentioned in subsection (2),

(b) a review relating to such an order made by the prosecutor, the Secretary of State or special counsel.

(6) In this section—

“appellant” and “appellate proceedings” have the meanings given by section 132,

“ respondent ” has the meaning given by section 140A.

(7) The reference in subsection (4)(a) to proceedings against the accused includes a reference to an appeal by the prosecutor against an acquittal.

General

Exemptions from disclosure

159

Information must not be disclosed by virtue of this Part to the extent that it is material the disclosure of which is prohibited by section 56 of the Investigatory Powers Act 2016 .

Means of disclosure

160

(1) This section applies where by virtue of this Part the prosecutor is required to disclose information to an accused.

(2) The prosecutor may disclose the information by any means.

(3) In particular, the prosecutor may disclose the information by enabling the accused to inspect it at a reasonable time and in a reasonable place.

(4) Subsection (5) applies if the information is contained in—

(a) a precognition,

(b) a victim statement,

(d) where the proceedings relating to the accused are summary proceedings, a statement given by a person whom the prosecutor intends to call to give evidence in the proceedings.

(5) In complying with the requirement, the prosecutor need not disclose the precognition or, as the case may be, statement.

(6) Subsection (7) applies where the proceedings relating to the accused are solemn proceedings and—

(a) the information is contained in a statement given by a person whom the prosecutor intends to call to give evidence in the proceedings, or

(b) the information is contained in a statement and the prosecutor intends to apply under section 259 of the 1995 Act to have evidence of the statement admitted in the proceedings.

(7) In complying with the requirement, the prosecutor must disclose a copy of the statement (but subsections (2) and (3) continue to apply).

(8) This section is subject to any provision made by an order under section 145(7), 146(11), 155(6) or 156(6).

(9) In this section—

“ accused ” includes— appellant or, in any case relating to section 136(2), 137(2) or 138(2), other person to whom the section concerned applies, andrespondent,

“appellant” has the meaning given by section 132.

“ respondent ” has the meaning given by section 140A.

Redaction of non-disclosable information by prosecutor

161

(1) Subsection (2) applies where—

(a) by virtue of this Part the prosecutor is required to disclose an item of information (the “disclosable information”), and

(b) the disclosable information forms part of, or contains, other information (the “non-disclosable information”) which the prosecutor is not required to disclose by virtue of this Part.

(2) Before disclosing the disclosable information, the prosecutor may (whether by redaction or otherwise) remove or obscure the non-disclosable information.

Confidentiality of disclosed information

162

(1) This section applies where by virtue of this Part the prosecutor discloses information to an accused.

(2) The accused must not use or disclose the information or anything recorded in it other than in accordance with subsection (3).

(3) The accused may use or disclose the information—

(a) for the purposes of the proper preparation and presentation of the accused's case in the proceedings in relation to which the information was disclosed (“the original proceedings”),

(b) with a view to the taking of an appeal in relation to the matter giving rise to the original proceedings,

(4) A person to whom information is disclosed by virtue of subsection (3) must not use or disclose the information or anything recorded in it other than for the purpose for which it was disclosed.

(5) If despite subsection (2) the accused discloses the information or anything recorded in it other than in accordance with subsection (3), a person to whom information is disclosed must not use or disclose the information or anything recorded in it.

(6) Subsections (2), (4) and (5) do not apply in relation to the use or disclosure of information which is in the public domain at the time of the use or disclosure.

(7) In subsection (3) “appeal” includes—

(a) the reference of a case to the High Court of Justiciary by the Scottish Criminal Cases Review Commission under section 194B of the 1995 Act,

(b) a petition to the nobile officium,

(8) In this section—

“ accused ” includes— where information is disclosed by virtue of section 133(2)(b), 134(2)(b), 135(3)(b), 136(2), 137(2) or 138(2), the appellant or, as the case may be, person to whom the prosecutor is required to disclose the information, andwhere information is disclosed by virtue of section 140B(2)(b), 140C(2) or 140D(3)(b), the respondent,

“ respondent ” has the meaning given by section 140A.

(9) Nothing in this section affects any other restriction or prohibition on the use or disclosure of information, whether the restriction or prohibition arises by virtue of an enactment (whenever passed or made) or otherwise.

Contravention of section 162

163

(1) A person who knowingly uses or discloses information in contravention of section 162 commits an offence.

(2) A person guilty of an offence under subsection (1) is liable—

(a) on summary conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or to both,

(b) on conviction on indictment to imprisonment for a term not exceeding 2 years or to a fine or to both.

Code of practice

164

(1) The Lord Advocate—

(a) must issue a code of practice providing guidance about this Part, and

(b) may from time to time revise the code for the time being in force.

(2) The persons mentioned in subsection (3) must have regard to the code of practice for the time being in force in carrying out their functions in relation to the investigation and reporting of crime and sudden deaths.

(3) Those persons are—

(a) constables of the Police Service of Scotland,

(b) prosecutors,

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

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

as the Scottish Ministers may prescribe by regulations.

(4) The Lord Advocate must lay before the Scottish Parliament any code or revised code issued under this section.

Acts of Adjournal

165

The High Court may by Act of Adjournal make such rules as it considers necessary or expedient for the purposes of, in consequence of, or for giving full effect to, any provision of this Part.

Abolition of common law rules about disclosure

166

(1) The provisions of this Part replace any equivalent common law rules about disclosure of information by the prosecutor in connection with criminal proceedings.

(2) The common law rules about disclosure of information by the prosecutor in connection with criminal proceedings are abolished in so far as they are replaced by or are inconsistent with the provisions of this Part.

(3) Sections 128, 139 and 140E do not affect any right under the common law of an accused, appellant or respondent to seek disclosure or recovery of information by or from the prosecutor by means of a procedure other than an application under one or other of those sections.

(4) Subsection (5) applies where, following an application (the “earlier disclosure application”) by the accused, the appellant or the respondent under section 128, 139 or 140E, the court has made a ruling that (as the case may be)—

(a) section 121(3) does not apply to information, ...

(b) information does not fall within section 133(3), or

(5) The accused, the appellant or, as the case may be, the respondent is not entitled to seek the disclosure or recovery of the same information by or from the prosecutor by means of any other procedure at common law on grounds that are substantially the same as any of those on which the earlier disclosure application was made.

(6) Subsection (7) applies where, following an application (the “earlier common law application”) by the accused or the respondent under a procedure other than an application under section 128, 139 or 140E, the court has decided not to make an order for the recovery or disclosure of information by or from the prosecutor.

(7) The accused, the appellant or, as the case may be, the respondent is not entitled to make an application under section 128, 139 or 140E in relation to the same information on grounds that are substantially the same as any of those on which the earlier common law application was made.

(8) In this section—

“ appellant ” has the meaning given by section 132,

“respondent” has the meaning given by section 140A.

Interpretation of Part 6

167

(1) In this Part—

“investigating agency” has the meaning given by section 117(4),

“procurator fiscal” and “prosecutor” have the meanings given by section 307(1) of the 1995 Act.

(2) References in the following sections to the accused include references to a solicitor or advocate acting on behalf of the accused—

(a) section 121(2)(b),

(b) section 122(2),

(d) section 124(2)(b),

(e) section 125(4)(b),

(f) section 126(6)(b),

(g) section 127(2),

(h) section 128(1)(b),

(i) section 129(6).

(3) References in the following sections to the accused, the appellant or other person or the respondent include references to a solicitor or advocate acting on behalf of the accused, the appellant or other person or, as the case may be, the respondent—

(a) section 141,

(b) section 142,

(d) section 144 (other than subsection (5)(b)),

(e) section 145(4)(a), (4A)(a) and (7),

(f) section 146 (other than subsections (7)(b), (8)(c), (8A)(c) and (9)(b)),

(g) section 147,

(h) section 148 (other than subsection (6)(b)),

(i) section 149 (other than subsection (5)(b)),

(j) section 153(8)(c) and (d),

(k) section 155(1) and (4),

(l) section 156(1)(b), (4), (5) (in the second place where it occurs) and (6),

(m) section 158(5),

(n) section 160,

(o) section 162(1), (2), (3) (where it first occurs) and (5).

(4) References in the following sections to an appellant include references to a solicitor or advocate acting on behalf of the appellant—

(a) section 133(2)(b) and (4),

(b) section 134(1), (2)(b) and (3),

(5) References in the following sections to a person include references to a solicitor or advocate acting on behalf of the person or, as the case may be, to a solicitor or advocate who acted on behalf of the person in the proceedings to which the information relates—

(a) section 136(2) and (3),

(b) section 137(2) and (4),

(6) References in the following sections to the respondent include references to a solicitor or advocate acting on behalf of the respondent—

(a) section 140B(2)(b) and (4),

(b) section 140C(1)(a), (2) and (3),

PART 7 — MENTAL DISORDER AND UNFITNESS FOR TRIAL

Criminal responsibility of persons with mental disorder

168

Before section 52 of the 1995 Act insert—

(51A) (1) A person is not criminally responsible for conduct constituting an offence, and is to be acquitted of the offence, if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct. (2) But a person does not lack criminal responsibility for such conduct if the mental disorder in question consists only of a personality disorder which is characterised solely or principally by abnormally aggressive or seriously irresponsible conduct. (3) The defence set out in subsection (1) is a special defence. (4) The special defence may be stated only by the person charged with the offence and it is for that person to establish it on the balance of probabilities. (5) In this section, “conduct” includes acts and omissions. (51B) (1) A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person's ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind. (2) For the avoidance of doubt, the reference in subsection (1) to abnormality of mind includes mental disorder. (3) The fact that a person was under the influence of alcohol, drugs or any other substance at the time of the conduct in question does not of itself— (a) constitute abnormality of mind for the purposes of subsection (1), or (b) prevent such abnormality from being established for those purposes. (4) It is for the person charged with murder to establish, on the balance of probabilities, that the condition set out in subsection (1) is satisfied. (5) In this section, “conduct” includes acts and omissions.

Acquittal involving mental disorder: procedure

169

Before section 54 of the 1995 Act insert—

(53E) (1) Where the prosecutor accepts a plea (by the person charged with the commission of an offence) of the special defence set out in section 51A of this Act, the court must declare that the person is acquitted by reason of the special defence. (2) Subsection (3) below applies where— (a) the prosecutor does not accept such a plea, and (b) evidence tending to establish the special defence set out in section 51A of this Act is brought before the court. (3) Where this subsection applies the court is to— (a) in proceedings on indictment, direct the jury to find whether the special defence has been established and, if they find that it has, to declare whether the person is acquitted on that ground, (b) in summary proceedings, state whether the special defence has been established and, if it states that it has, declare whether the person is acquitted on that ground.

Unfitness for trial

170

(1) In the 1995 Act, after section 53E (inserted by section 169), insert—

(53F) (1) A person is unfit for trial if it is established on the balance of probabilities that the person is incapable, by reason of a mental or physical condition, of participating effectively in a trial. (2) In determining whether a person is unfit for trial the court is to have regard to— (a) the ability of the person to— (i) understand the nature of the charge, (ii) understand the requirement to tender a plea to the charge and the effect of such a plea, (iii) understand the purpose of, and follow the course of, the trial, (iv) understand the evidence that may be given against the person, (v) instruct and otherwise communicate with the person's legal representative, and (b) any other factor which the court considers relevant. (3) The court is not to find that a person is unfit for trial by reason only of the person being unable to recall whether the event which forms the basis of the charge occurred in the manner described in the charge. (4) In this section “the court” means— (a) as regards a person charged on indictment, the High Court or the sheriff court, (b) as regards a person charged summarily, the sheriff court.

(2) The title of section 54 of the 1995 Act (insanity in bar of trial) is replaced by “Unfitness for trial: further provision”, the cross-heading which precedes it is omitted and the section is amended as follows—

(a) in subsection (1)—

(i) the words “, on the written or oral evidence of two medical practitioners,” are repealed, and

(ii) for “insane” substitute “ unfit for trial ”,

(b) in subsection (3)—

(i) for “the insanity of a person” substitute “ whether a person is unfit for trial ”, and

(ii) after “mental” insert “ or physical ”, and

(3) Subsections (6) and (7) are repealed.

Abolition of common law rules

171

Any rule of law providing for—

(a) the special defence of insanity,

(b) the plea of diminished responsibility, or

ceases to have effect.

PART 8 — LICENSING UNDER CIVIC GOVERNMENT (SCOTLAND) ACT 1982

Conditions to which licences under 1982 Act are to be subject

172

(1) The 1982 Act is amended as follows.

(2) In section 3(4) (automatic grant or renewal of licence where application not determined within specified period), the word “unconditionally” is repealed.

(3) After section 3 insert—

(3A) (1) The Scottish Ministers may by order made by statutory instrument prescribe conditions to which licences granted by licensing authorities under this Act are to be subject. (2) Different conditions may be prescribed under subsection (1)— (a) in respect of different licences, or different types of licence, (b) otherwise for different purposes, circumstances or cases. (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) Subsection (1) does not affect any other power of the Scottish Ministers under this Act or any other enactment to prescribe conditions— (a) to which licences granted by licensing authorities under this Act are to be subject, or (b) to be imposed by licensing authorities in granting or renewing licences under this Act. (5) The following conditions are referred to in this Part and Part 2 of this Act as “mandatory conditions”— (a) conditions prescribed under subsection (1), (b) conditions prescribed under any power referred to in subsection (4), and (c) conditions imposed, or required to be imposed, by any provision of this Part or Part 2 of this Act. (6) In this section and section 3B, references to licences granted by licensing authorities include references to— (a) licences renewed by licensing authorities, and (b) licences deemed by virtue of section 3(4) to be granted or renewed by licensing authorities. (3B) (1) A licensing authority may determine conditions to which licences granted by them under this Act are to be subject. (2) Conditions determined under subsection (1) are referred to in this Part and Part 2 as “standard conditions”. (3) Different conditions may be determined under subsection (1)— (a) in respect of different licences, or different types of licence, (b) otherwise for different purposes, circumstances or cases. (4) A licensing authority must publish, in such manner as they think appropriate, any standard conditions determined by them. (5) Standard conditions have no effect— (a) unless they are published, and (b) so far as they are inconsistent with any mandatory conditions. (6) Subsection (1) is subject to paragraph 5(1A)(a) of Schedule 1 to this Act.

(4) In section 27C (conditions in respect of knife dealers' licences)—

(a) in subsection (1)—

(i) in paragraph (b), after “prejudice to” insert “ section 3B and ”, and

(ii) in paragraph (c), after “that” insert “ section and ”, and

(b) subsection (2) is repealed.

(5) In section 41(3) (power to attach conditions to public entertainment licences), after “prejudice to” insert “ section 3B of and ”.

(6) In Schedule 1 (further provisions as to the general licensing system), in paragraph 5—

(a) in sub-paragraph (1)—

(i) in paragraph (a), the word “unconditionally” is repealed, and

(ii) paragraph (b) is repealed,

(b) after that sub-paragraph insert—

(1A) In granting or renewing a licence under sub-paragraph (1)(a), a licensing authority may (either or both)— (a) disapply or vary any standard conditions so far as applicable to the licence, (b) impose conditions in addition to any mandatory or standard conditions to which the licence is subject.

(d) after that sub-paragraph insert—

(2A) A variation made under sub-paragraph (1A)(a) or condition imposed under sub-paragraph (1A)(b) has no effect so far as it is inconsistent with any mandatory condition to which the licence is subject.

Licensing: powers of entry and inspection for civilian employees

173

(1) The 1982 Act is amended as follows.

(2) In section 5 (rights of entry and inspection)—

(a) in subsection (1), after “licensing authority” insert “ , an authorised civilian employee ”,

(b) in subsection (3)(a) and (b)—

(i) after “constable” where it first occurs insert “ , an authorised civilian employee ”, and

(ii) after “such an” insert “ employee or ”,

(d) in subsection (4)—

(i) after “licensing authority” insert “ , an authorised civilian employee ”, and

(ii) after “the officer” insert “ , employee ”, and

(e) in subsection (6), after “licensing authority” insert “ or authorised civilian employee ”.

(3) In section 8 (interpretation of Parts 1 and 2), after the definition of “appropriate relevant authority” insert—

“authorised civilian employee” means a person— (a) employed by a police authority under section 9(1)(a) of the Police (Scotland) Act 1967 (c.77), and (b) authorised by the chief constable for the purposes of sections 5 and 11 of this Act;

(4) In section 11 (inspection and testing of vehicles), in subsection (2)—

(a) after “the authority)” insert “ , an authorised civilian employee ”,

(b) in paragraph (b), after “licensing authority” insert “ , an authorised civilian employee ”, and

(5) In paragraph 3 (miscellaneous definitions) of Schedule 2 (control of sex shops), after the definition of “appropriate relevant authority” insert—

“authorised civilian employee” means a person— (a) employed by a police authority under section 9(1)(a) of the Police (Scotland) Act 1967 (c.77), and (b) authorised by the chief constable for the purposes of paragraph 20 of this Schedule;

(6) In paragraph 20 of that Schedule (rights of entry and inspection)—

(a) in sub-paragraph (1), after “local authority” insert “ , an authorised civilian employee ”,

(b) in sub-paragraph (3), after “local authority” insert “ or an authorised civilian employee ”, and

(i) after “constable” where it first occurs insert “ , an authorised civilian employee ”, and

(ii) after “such” insert “ employee or ”.

Licensing of taxis and private hire cars

174

(1) The 1982 Act is amended as follows.

(2) In section 13 (taxi and private hire car licences), in subsection (3), for “during any continuous period of 12 months” substitute “ throughout the period of 12 months immediately ”.

(3) In section 17 (taxi fares)—

(a) for subsections (2) to (4) substitute—

(2) The licensing authority must fix scales for the fares and other charges mentioned in subsection (1) within 18 months beginning with the date on which the scales came into effect. (3) In fixing scales under subsection (2), the licensing authority may— (a) alter fares or other charges, (b) fix fares or other charges at the same rates. (4) Before fixing scales under subsection (2), the licensing authority must review the scales in accordance with subsection (4A). (4A) In carrying out a review, the licensing authority must— (a) consult with persons or organisations appearing to it to be, or to be representative of, the operators of taxis operating within its area, (b) following such consultation— (i) review the existing scales, and (ii) propose new scales (whether at altered rates or the same rates), (c) publish those proposed scales in a newspaper circulating in its area— (i) setting out the proposed scales, (ii) explaining the effect of the proposed scales, (iii) proposing a date on which the proposed scales are to come into effect, and (iv) stating that any person may make representations in writing until the relevant date, and (d) consider any such representations. (4B) In subsection (4A)(c)(iv) “the relevant date” is a date specified by the licensing authority falling at least one month after the first publication by the authority of the proposed scales. (4C) After fixing scales under subsection (2), the licensing authority must give notice in accordance with subsection (4D). (4D) The licensing authority must— (a) set out, and explain the effect of, the scales as fixed, (b) notify the persons mentioned in subsection (4E) of— (i) the date on which the scales as fixed are to come into effect, and (ii) the rights of appeal under section 18. (4E) Those persons are— (a) all operators of taxis operating within their area, and (b) the persons and organisations consulted under subsection (4A)(a).

, and

(b) in subsection (5)—

(i) for “(4)” where it first occurs substitute “ (4D)(b) ”, and

(ii) in paragraph (a)—

(A) for “(4)” where it first occurs substitute “ (4E) ”, and

(B) for “five days after the decision referred to in subsection (4)” substitute “ seven days after the scales are fixed under subsection (2) ”.

(4) In section 18 (appeals in respect of taxi fares)—

(a) for subsection (1) substitute—

(1) Any person mentioned in subsection (1A) may, within 14 days of notice being given under section 17(4C), appeal against those scales to the traffic commissioner for the Scottish Traffic Area as constituted for the purpose of the Public Passenger Vehicles Act 1981.

(b) after that subsection insert—

(1A) Those persons are— (a) any person who operates a taxi in an area for which scales have been fixed under section 17(2), and (b) any person or organisation appearing to the traffic commissioner to be representative of such taxi operators.

(i) the words “to them” are repealed,

(ii) in paragraph (b) the word “may” is repealed, and

(iii) in paragraph (b)(i), for “on the grounds that” substitute “ if ”, and

(d) subsection (9) is repealed.

(5) After section 18 insert—

(18A) (1) Following the fixing of scales by a licensing authority under section 17(2), the licensing authority must— (a) determine the date on which the scales are to come into effect, and (b) publish the scales in accordance with subsections (3) to (5). (2) The scales may come into effect no earlier than seven days after the date on which they are published. (3) The licensing authority must— (a) give notice of the scales by advertisement in a newspaper circulating in its area, and (b) specify in that advertisement the date on which the scales are to come into effect. (4) The authority must give notice of the scales— (a) where no appeal has been lodged under subsection (1) of section 18, as soon as practicable after the expiry of the period of 14 days mentioned in that subsection, (b) where such an appeal has been lodged, as soon as practicable after the determination of the appeal. (5) For the purposes of subsection (4), an appeal is determined on the date on which the appeal is abandoned or notice is given to the appellant of its disposal.

Licensing of street trading: food hygiene certificates

175

(1) Section 39 of the 1982 Act (street traders' licences) is amended as follows.

(2) In subsection (4), for the words from “the requirements” to the end substitute “ such requirements as the Scottish Ministers may by order made by statutory instrument specify ”.

(3) After subsection (4), insert—

(5) An order under subsection (4) may specify requirements by reference to provision contained in another enactment. (6) A statutory instrument containing an order made under subsection (4) is subject to annulment in pursuance of a resolution of the Scottish Parliament.

Licensing of public entertainment

176

(1) Section 41 of the 1982 Act (public entertainment licences) is amended as follows.

(2) In subsection (2)—

(a) the words “, on payment of money or money's worth,” are repealed,

(b) in paragraph (d), for “, section 1 of the Cinemas Act 1985 or Part II of the Gaming Act 1968” substitute “ or section 1 of the Cinemas Act 1985 ”,

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