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Criminal Justice (Scotland) Act 2016

Type Act of the Scottish Parliament

Publication 2016-01-13

Last updated 2023-12-20

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(b) amend subsections (1)(c), (3) and (5) of section 42,

(c) specify descriptions of persons who may for the purposes of subsection (2) of section 42 be considered suitable to provide support of the sort mentioned in subsection (3) of that section (including as to training, qualifications and experience).

(2) Regulations under subsection (1) are subject to the affirmative procedure.

Interpretation of Part

Meaning of constable

62

In this Part, “constable” has the meaning given by section 99(1) of the Police and Fire Reform (Scotland) Act 2012.

Meaning of officially accused

63

For the purposes of this Part, a person is officially accused of committing an offence if—

(a) a constable charges the person with the offence, or

(b) the prosecutor initiates proceedings against the person in respect of the offence.

Meaning of police custody

64

(1) For the purposes of this Part, a person is in police custody from the time the person is arrested by a constable until any one of the events mentioned in subsection (2) occurs.

(2) The events are—

(a) the person is released from custody,

(b) the person is brought before a court in accordance with section 21(2),

(ca) the person is brought before a court in accordance with—

(i) any other enactment or rule of law which requires that a person in custody be brought before a court, or

(ii) a term of the warrant under which the person was arrested,

(cb) the person is transferred in accordance with the law into the custody of a person who is neither—

(i) a constable, nor

(ii) a member of police staff appointed under section 26(1) of the Police and Fire Reform (Scotland) Act 2012,

(d) the Principal Reporter makes a direction under section 65(2)(b) of the Children's Hearings (Scotland) Act 2011 that the person continue to be kept in a place of safety.

(3) A person who is at a police station in the custody of a prisoner custody officer is not to be regarded as having been transferred into the custody of that officer for the purposes of subsection (2)(cb).

(4) In subsection (3), “prisoner custody officer” has the meaning given in section 114(1) of the Criminal Justice and Public Order Act 1994.

PART 2 — SEARCH BY POLICE

CHAPTER 1 — SEARCH OF PERSON NOT IN POLICE CUSTODY

Lawfulness of search by constable

Limitation on what enables search

65

(1) This section applies in relation to a person who is not in police custody.

(2) It is unlawful for a constable to search the person otherwise than—

(a) in accordance with a power of search conferred in express terms by an enactment, or

(b) under the authority of a warrant expressly conferring a power of search.

Cases involving removal of person

66

(1) A person who is not in police custody may be searched by a constable while the person is to be, or is being, taken to or from any place—

(a) by virtue of any enactment, warrant or court order requiring or permitting the constable to do so, or

(b) in circumstances in which the constable believes that it is necessary to do so with respect to the care or protection of the person.

(2) A search under this section is to be carried out for the purpose of ensuring that the person is not in, or does not remain in, possession of any item or substance that could cause harm to the person or someone else.

(3) Anything seized by a constable in the course of a search carried out under this section may be retained by the constable.

Public safety at premises or events

67

(1) A person who is not in police custody may be searched by a constable if—

(a) the person—

(i) is seeking to enter, or has entered, relevant premises, or

(ii) is seeking to attend, or is attending, a relevant event, and

(b) the further criteria are met.

(2) Premises are or an event is relevant if—

(a) the premises may be entered, or the event may be attended, by members of the public (including where dependent on possession of a ticket or on payment of a charge), and

(b) the entry or the attendance is controlled, at the time of the entry or the attendance, by or on behalf of the occupier of the premises or the organiser of the event.

(3) The further criteria to be met are that—

(a) the entry or the attendance is subject to a condition, imposed by the occupier of the premises or the organiser of the event, that the person consents to being searched, and

(b) the person informs the constable that the person consents to being searched by the constable.

(4) A search under this section is to be carried out for the purpose of ensuring the health, safety or security of people on the premises or at the event.

(5) Anything seized by a constable in the course of a search carried out under this section may be retained by the constable.

Duty to consider child’s wellbeing

68

(1) Subsection (2) applies when a constable is deciding whether to search a child who is not in police custody.

(2) In taking the decision, the constable must treat the need to safeguard and promote the wellbeing of the child as a primary consideration.

(3) For the purposes of this section, a child is a person who is under 18 years of age.

Miscellaneous and definitions

Publication of information by police

69

(1) The Police Service of Scotland must ensure that, as soon as practicable after the end of each reporting year, information is published on how many times during the reporting year a search was carried out by a constable—

(a) of a person not in police custody, and

(b) otherwise than under the authority of a warrant expressly conferring a power of search.

(2) So far as practicable, the information is to disclose (in addition)—

(a) how many persons were searched on two or more occasions,

(b) the age and gender, and the ethnic and national origin, of the persons searched,

(i) something being seized by a constable,

(ii) a case being reported to the procurator fiscal,

(d) the number of complaints made to the Police Service of Scotland about the carrying out of searches (or the manner in which they were carried out).

(3) In this section, “reporting year” means a yearly period ending on 31 March.

Provisions about possession of alcohol

70

(1) The Scottish Ministers may by regulations amend section 61 (confiscation of alcohol from persons under 18) of the Crime and Punishment (Scotland) Act 1997 so as to confer on a constable a power, exercisable in addition to the power in subsection (1) or (2) of that section—

(a) to search a person for alcoholic liquor,

(b) to dispose of anything found in the person's possession that the constable believes to be such liquor.

(2) Prior to laying before the Scottish Parliament a draft of an instrument containing regulations under this section, the Scottish Ministers must—

(a) consult publicly on the regulations that they are proposing to make,

(b) send a copy of the proposed regulations to—

(i) the chief constable of the Police Service of Scotland,

(ia) the chief constable of the British Transport Police Force,

(ib) the chief constable of the Civil Nuclear Constabulary,

(ic) the chief constable of the Ministry of Defence Police,

(ii) the Scottish Human Rights Commission,

(iii) the Commissioner for Children and Young People in Scotland, and

(iv) such other persons as the Scottish Ministers consider appropriate.

(3) When laying before the Scottish Parliament a draft of an instrument containing regulations under this section, the Scottish Ministers must also so lay a statement—

(a) giving reasons for wishing to make the regulations as currently framed (and confirming whether the regulations will amend the relevant enactment in the same way as shown in the proposed regulations),

(b) summarising—

(i) the responses received by them to the public consultation on the proposed regulations,

(ii) the representations made to them by the persons to whom a copy of the proposed regulations was sent.

(4) Regulations under this section are subject to the affirmative procedure.

Matters as to effect of sections 65, 66 and 70

71

(1) The day appointed for the coming into force of sections 65 and 66 is to be the same as the day from which a code of practice required by section 73(1) has effect by virtue of the first regulations made under section 77.

(2) If no regulations under section 70 are made before the end of the 2 years beginning with the day from which a code of practice required by section 73(1) has effect by virtue of the first regulations made under section 77, section 70 is to be regarded as repealed at the end of that period.

Meaning of constable etc.

72

In this Chapter—

“constable” has the meaning given by section 99(1) of the Police and Fire Reform (Scotland) Act 2012,

“police custody” has the same meaning as given for the purposes of Part 1 (see section 64).

CHAPTER 2 — CODE OF PRACTICE

Making and status of code

Contents of code of practice

73

(1) The Scottish Ministers must make a code of practice about the carrying out of a search of a person who is not in police custody.

(2) A code of practice must set out (in particular)—

(a) the circumstances in which a search of such a person may be carried out,

(b) the procedure to be followed in carrying out such a search,

(i) the record to be kept,

(ii) the right of someone to receive a copy of the record.

(3) A code of practice is to apply to the functions exercisable by a constable.

(4) In this section—

“constable” has the meaning given by section 99(1) of the Police and Fire Reform (Scotland) Act 2012,

“police custody” has the same meaning as given for the purposes of Part 1 (see section 64).

(5) In this Chapter, a reference to a code of practice means one required by subsection (1) (but see also section 74(5)).

Review of code of practice

74

(1) The Scottish Ministers may revise a code of practice in light of a review conducted under subsection (2).

(2) The Scottish Ministers must conduct a review of a code of practice as follows—

(a) a review is to begin no later than 2 years after the code comes into effect,

(b) subsequently, a review is to begin no later than 4 years after—

(i) if the code is revised in light of the previous review under this subsection, the coming into effect of the revised code, or

(ii) otherwise, the completion of the previous review under this subsection.

(3) So far as practicable, a review conducted under subsection (2) must be completed within 6 months of the day on which the review begins.

(4) In deciding when to conduct a review in accordance with subsection (2), the Scottish Ministers must have regard to representations put to them on the matter by—

(a) the Scottish Police Authority,

(b) the chief constable of the Police Service of Scotland, ...

(d) the British Transport Police Authority,

(e) the chief constable of the British Transport Police Force,

(f) the Civil Nuclear Police Authority,

(g) the chief constable of the Civil Nuclear Constabulary,

(h) the chief constable of the Ministry of Defence Police, or

(i) the Secretary of State.

(5) For the purposes of—

(a) section 73(3) and this section (except subsection (2)(a)), and

(b) sections 75, 76 (except subsection (3)) and 77 (except subsection (3)),

a reference to a code of practice includes a revised code as allowed by subsection (1).

Legal status of code of practice

75

(1) A court or tribunal in civil or criminal proceedings must take a code of practice into account when determining any question arising in the proceedings to which the code is relevant.

(2) Breach of a code of practice does not of itself give rise to grounds for any legal claim whatsoever.

Procedure applying to code

Consultation on code of practice

76

(1) Prior to making a code of practice, the Scottish Ministers must consult publicly on a draft of the code.

(2) When preparing a draft of a code of practice for public consultation, the Scottish Ministers must consult—

(a) the Lord Justice General,

(b) the Faculty of Advocates,

(d) the Scottish Police Authority,

(e) the chief constable of the Police Service of Scotland,

(ea) the British Transport Police Authority,

(eb) the chief constable of the British Transport Police Force,

(ec) the Civil Nuclear Police Authority,

(ed) the chief constable of the Civil Nuclear Constabulary,

(ee) the chief constable of the Ministry of Defence Police,

(ef) the Commissioners for Her Majesty’s Revenue and Customs,

(eg) the Director of Border Revenue,

(eh) the National Crime Agency,

(ei) for each of the persons mentioned in paragraphs (ea) to (eh), the Secretary ofState.

(f) the Police Investigations and Review Commissioner,

(g) the Scottish Human Rights Commission,

(h) the Commissioner for Children and Young People in Scotland, and

(i) such other persons as the Scottish Ministers consider appropriate.

(3) Subsection (1) or (2) is complied with in relation to a code of practice having (or to have) effect for the first time even if the consultation has been initiated before the day on which this section comes into force.

Bringing code of practice into effect

77

(1) A code of practice has no effect until the day appointed for the code by regulations made by the Scottish Ministers.

(2) When laying before the Scottish Parliament a draft of an instrument containing regulations bringing a code of practice into effect, the Scottish Ministers must also so lay a copy of the code.

(3) No later than at the end of the 12 months beginning with the day on which this section comes into force, there must be so laid a draft of an instrument containing regulations bringing a code of practice into effect.

(4) Regulations under this section are subject to the affirmative procedure.

PART 3 — SOLEMN PROCEDURE

Proceedings on petition

78

(1) In section 35 (judicial examination) of the 1995 Act, after subsection (6) there is inserted—

(6A) In proceedings before the sheriff in examination or further examination, the accused is not to be given an opportunity to make a declaration in respect of any charge.

(2) The following provisions of the 1995 Act are repealed—

(a) in section 35, subsections (3), (4) and (5),

(b) sections 36, 37 and 38,

(d) in section 79, paragraph (b)(iii) of subsection (2),

(e) section 278.

Pre-trial time limits

79

(1) The 1995 Act is amended as follows.

(2) In section 65 (prevention of delay in trials)—

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

(aa) where an indictment has been served on the accused in respect of the sheriff court, a first diet is commenced within the period of 11 months;

(b) in subsection (1A), after the word “applies)” there is inserted “ , the first diet (where subsection (1)(aa) above applies) ”,

(i) 110 days, unless a first diet in respect of the case is commenced within that period, which failing he shall be entitled to be admitted to bail; or (ii) 140 days

(d) in subsection (9)—

(i) the word “and” immediately following paragraph (b) is repealed,

(ii) after paragraph (b) there is inserted—

(ba) a first diet shall be taken to commence when it is called;

(3) In section 66 (service and lodging of indictment, etc.), for sub-paragraphs (i) and (ii) of paragraph (a) of subsection (6) there is substituted “ at a first diet not less than 29 clear days after the service of the indictment, ”.

(4) In section 72C (procedure where preliminary hearing does not proceed), for paragraph (b) of subsection (4) there is substituted—

(b) where the charge is one that can lawfully be tried in the sheriff court, at a first diet in that court not less than 29 clear days after the service of the notice.

Duty of parties to communicate

80

(1) The 1995 Act is amended as follows.

(2) In section 71 (first diet), after subsection (1) there is inserted—

(1ZA) If a written record has been lodged in accordance with section 71C, the court must have regard to the written record when ascertaining the state of preparation of the parties.

(3) Before section 72 there is inserted—

(71C) (1) Subsection (2) applies where— (a) the accused is indicted to the sheriff court, and (b) a solicitor— (i) has notified the court under section 72F(1) that the solicitor has been engaged by the accused for the purposes of conducting the accused's defence, and (ii) has not subsequently been dismissed by the accused or withdrawn. (2) The prosecutor and the accused's legal representative must, within the period described in subsection (3), communicate with each other and jointly prepare a written record of their state of preparation with respect to their cases (referred to in this section as “the written record”). (3) The period referred to in subsection (2) begins on the day the accused is served with an indictment and expires at the end of the day falling 14 days later. (4) The written record must— (a) be in such form, or as nearly as may be in such form, (b) contain such information, and (c) be lodged in such manner, as may be prescribed by act of adjournal. (5) The written record must state the manner in which the communication required by subsection (2) was conducted (for example, by telephone, email or a meeting in person). (6) In subsection (2), “the accused's legal representative” means— (a) the solicitor referred to in subsection (1), or (b) where the solicitor has instructed counsel for the purposes of the conduct of the accused's case, either the solicitor or that counsel, or both of them. (7) In subsection (6)(b), “counsel” includes a solicitor who has a right of audience in the High Court of Justiciary under section 25A of the Solicitors (Scotland) Act 1980.

(4) In section 75 (computation of certain periods), after the words “67(3),” there is inserted “ 71C(3) ”.

First diets

81

(1) The 1995 Act is amended as follows.

(2) In section 66 (service and lodging of indictment, etc.)—

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

(6AB) A notice affixed under subsection (4)(b) or served under subsection (6), where the indictment is in respect of the sheriff court, must contain intimation to the accused that the first diet may proceed and a trial diet may be appointed in the accused's absence.

(b) in subsection (6B), for the words “or (6AA)” there is substituted “ , (6AA) or (6AB) ”.

(3) In section 71 (first diet)—

(a) in subsection (1), the words from “whether” to “particular” are repealed,

(b) in subsection (5), after the word “proceed” there is inserted “ , and a trial diet may be appointed, ”,

(c) in subsection (6), for the words from the beginning to “required” there is substituted “ Where the accused appears at the first diet, the accused is to be required at that diet ”,

(d) subsection (7) is repealed,

(e) in subsection (9), after the word “section” there is inserted “ and section 71B ”.

(4) After section 71 there is inserted—

(71B) (1) At a first diet, unless a plea of guilty is tendered and accepted, the court must— (a) after complying with section 71, and (b) subject to subsections (3) to (7), appoint a trial diet. (2) Where a trial diet is appointed at a first diet, the accused must appear at the trial diet and answer the indictment. (3) In appointing a trial diet under subsection (1), in any case in which the 12 month period applies (whether or not the 140 day period also applies in the case)— (a) if the court considers that the case would be likely to be ready to proceed to trial within that period, it must, subject to subsections (5) to (7), appoint a trial diet for a date within that period, or (b) if the court considers that the case would not be likely to be so ready, it must give the prosecutor an opportunity to make an application to the court under section 65(3) for an extension of the 12 month period. (4) Where paragraph (b) of subsection (3) applies— (a) if such an application as is mentioned in that paragraph is made and granted, the court must, subject to subsections (5) to (7), appoint a trial diet for a date within the 12 month period as extended, or (b) if no such application is made or if one is made but is refused by the court— (i) the court may desert the first diet simpliciter or pro loco et tempore, and (ii) where the accused is committed until liberated in due course of law, the accused must be liberated forthwith. (5) Subsection (6) applies in any case in which— (a) the 140 day period as well as the 12 month period applies, and (b) the court is required, by virtue of subsection (3)(a) or (4)(a) to appoint a trial diet within the 12 month period. (6) In such a case— (a) if the court considers that the case would be likely to be ready to proceed to trial within the 140 day period, it must appoint a trial diet for a date within that period as well as within the 12 month period, or (b) if the court considers that the case would not be likely to be so ready, it must give the prosecutor an opportunity to make an application under section 65(5) for an extension of the 140 day period. (7) Where paragraph (b) of subsection (6) applies— (a) if such an application as is mentioned in that paragraph is made and granted, the court must appoint a trial diet for a date within the 140 day period as extended as well as within the 12 month period, (b) if no such application is made or if one is made but is refused by the court— (i) the court must proceed under subsection (3)(a) or (as the case may be) (4)(a) to appoint a trial diet for a date within the 12 month period, and (ii) the accused is then entitled to be admitted to bail. (8) Where an accused is, by virtue of subsection (7)(b)(ii), entitled to be admitted to bail, the court must, before admitting the accused to bail, give the prosecutor an opportunity to be heard. (9) On appointing a trial diet under this section in a case where the accused has been admitted to bail (otherwise than by virtue of subsection (7)(b)(ii)), the court, after giving the parties an opportunity to be heard— (a) must review the conditions imposed on the accused's bail, and (b) having done so, may, if it considers it appropriate to do so, fix bail on different conditions. (10) In this section— - “the 12 month period” means the period specified in subsection (1)(b) of section 65 and, in any case in which that period has been extended under subsection (3) of that section, includes that period as so extended, - “the 140 day period” means the period specified in subsection (4)(b)(ii) of section 65 and, in any case in which that period has been extended under subsection (5) of that section, includes that period as so extended.

(5) In subsection (3) of section 76 (procedure where accused desires to plead guilty), for the words from “or, where” to “Court,” there is substituted “ , the first diet or (as the case may be) ”.

(6) After section 83A there is inserted—

(83B) (1) In the sheriff court a trial diet and, if it is adjourned, the adjourned diet, may, without having been commenced, be continued from sitting day to sitting day— (a) by minute, in such form as may be prescribed by act of adjournal, signed by the sheriff clerk, (b) up to such maximum number of sitting days after the day originally appointed for the trial diet as may be so prescribed. (2) The indictment falls if a trial diet, or adjourned diet, is not commenced by the end of the last sitting day to which it may be continued by virtue of subsection (1). (3) For the purposes of this section, a trial diet or adjourned trial diet is to be taken to commence when it is called. (4) In this section, “sitting day” means any day on which the court is sitting but does not include any Saturday or Sunday or any day which is a court holiday.

(7) The italic heading immediately preceding section 83A becomes “ Continuation of trial diet ”.

Preliminary hearings

82

In section 72A (preliminary hearing: appointment of trial diet) of the 1995 Act—

(a) in subsection (1), for the words from the beginning to “section” there is substituted “ In any case in which subsection (6) of section 72 ”,

(b) subsection (1A) is repealed.

Plea of guilty

83

In the 1995 Act—

(a) in section 70 (proceedings against organisations), subsection (7) is repealed,

(b) in subsection (1) of section 77 (plea of guilty), the words from “and, subject” to the end are repealed.

PART 4 — SENTENCING

Maximum term for weapons offences

84

(1) The Criminal Law (Consolidation) (Scotland) Act 1995 is amended as follows.

(2) In subsection (1)(b) of section 47 (prohibition of the carrying of offensive weapons), for the word “four” there is substituted “ 5 ”.

(3) In subsection (1)(b) of section 49 (offence of having in public place article with blade or point), for the word “four” there is substituted “ 5 ”.

(4) In subsection (5) of section 49A (offence of having article with blade or point (or offensive weapon) on school premises)—

(a) in paragraph (a)(ii), for the word “four” there is substituted “ 5 ”,

(b) in paragraph (b)(ii), for the word “four” there is substituted “ 5 ”.

(5) In subsection (6)(b) of section 49C (offence of having offensive weapon etc. in prison), for the word “4” there is substituted “ 5 ”.

Prisoners on early release

Sentencing under the 1995 Act

85

After section 200 of the 1995 Act there is inserted—

(200A) (1) Before sentencing or otherwise dealing with a person who has been found by the court to have committed an offence punishable with imprisonment (other than an offence in respect of which life imprisonment is mandatory), the court must so far as is reasonably practicable ascertain whether the person was on early release at the time the offence was committed. (2) Where the court ascertains that the person was on early release at the time the offence was committed, the court must consider making an order, or as the case may be a reference, under section 16(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. (3) For the purposes of this section a person is on early release if, by virtue of one of the following enactments, the person is not in custody— (a) Part I of the Prisoners and Criminal Proceedings (Scotland) Act 1993, (b) Part II of the Criminal Justice Act 1991, or (c) Part 12 of the Criminal Justice Act 2003.

Sentencing under the 1993 Act

86

(1) Section 16 (commission of offence by released prisoner) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 is amended as follows.

(2) In subsection (1), for the words “or Part II of the Criminal Justice Act 1991” there is substituted “ , Part II of the Criminal Justice Act 1991 or Part 12 of the Criminal Justice Act 2003 ”.

(3) In subsection (2)—

(a) in paragraph (a), for the words from “other” to “below” there is substituted “ to which subsection (2A) does not apply ”,

(b) in paragraph (b), for the words from “where” to “subsection (1)(a)” there is substituted “ to which subsection (2A) applies ”.

(4) After subsection (2) there is inserted—

(2A) This subsection applies to a case if— (a) the court mentioned in subsection (1)(b) is inferior to the court which imposed the original sentence, and (b) the whole of the period described in subsection (2)(a) exceeds— (i) if the court mentioned in subsection (1)(b) is a justice of the peace court (however constituted), 60 days, (ii) if the court is the sheriff court sitting in summary proceedings, 12 months, (iii) if the court is the sheriff court sitting in solemn proceedings, 5 years.

PART 5 — APPEALS AND SCCRC

Appeals

Preliminary pleas in summary cases

87

(1) Section 174 (appeals relating to preliminary pleas) of the 1995 Act is amended as follows.

(2) In subsection (1)—

(a) the words from “with the leave” to “and” are repealed,

(b) for the words “this subsection” there is substituted “ subsection (1A)(b) ”.

(3) After subsection (1) there is inserted—

(1A) An appeal under subsection (1) may be taken— (a) in the case of a decision to dismiss the complaint or any part of it, by the prosecutor without the leave of the court, (b) in any other case, only with the leave of the court of first instance (granted on the motion of a party or ex proprio motu).

(4) After subsection (2) there is inserted—

(2A) Subsection (3) applies where— (a) the court grants leave to appeal under subsection (1), or (b) the prosecutor— (i) indicates an intention to appeal under subsection (1), and (ii) by virtue of subsection (1A)(a), does not require the leave of the court.

(5) In subsection (3), for the words from the beginning to “it” there is substituted “ Where this subsection applies, the court of first instance ”.

Preliminary diets in solemn cases

88

In section 74 (appeals in connection with preliminary diets) of the 1995 Act—

(a) in subsection (1), for the words from “to—” to “motu)” there is substituted “ to any right of appeal under section 106 or 108 a party may, ”,

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

(2A) An appeal under subsection (1) may be taken— (a) in the case of a decision to dismiss the indictment or any part of it, by the prosecutor without the leave of the court, (b) in any other case, only with the leave of the court of first instance (granted on the motion of a party or ex proprio motu).

Extending certain time limits: summary

89

(1) Section 181 (stated case: directions by Sheriff Appeal Court) of the 1995 Act is amended as follows.

(2) After subsection (1) there is inserted—

(1A) Where an application for a direction under subsection (1)— (a) is made by the person convicted, and (b) relates to the requirements of section 176(1), the Sheriff Appeal Court may make a direction only if it is satisfied that doing so is justified by exceptional circumstances. (1B) In considering whether there are exceptional circumstances for the purpose of subsection (1A), the Sheriff Appeal Court must have regard to— (a) the length of time that has elapsed between the expiry of the period mentioned in section 176(1)(a) and the making of the application, (b) the reasons stated in accordance with subsection (2A)(a)(i), (c) the proposed grounds of appeal.

(3) Subsection (2C) is repealed.

(4) In paragraph (a) of subsection (3), the words from “(unless” to the end are repealed.

(5) At the end of the section there is inserted—

(5) If the Sheriff Appeal Court makes a direction under subsection (1), it must— (a) give reasons for the decision in writing, and (b) give the reasons in ordinary language.

Extending certain time limits: solemn

90

(1) In section 105 (appeal against refusal of application) of the 1995 Act, after subsection (3) there is inserted—

(3A) Subsection (3) does not entitle an applicant to be present at the hearing and determination of an application under section 111(2) unless the High Court has made a direction under section 111(4)(b).

(2) Section 111 (provisions supplementary to sections 109 and 110) of the 1995 Act is amended as follows.

(3) After subsection (2) there is inserted—

(2ZA) Where an application under subsection (2) is received after the period to which it relates has expired, the High Court may extend the period only if it is satisfied that doing so is justified by exceptional circumstances. (2ZB) In considering whether there are exceptional circumstances for the purpose of subsection (2ZA), the High Court must have regard to— (a) the length of time that has elapsed between the expiry of the period and the making of the application, (b) the reasons stated in accordance with subsection (2A)(a)(i), (c) the proposed grounds of appeal.

(4) In subsection (2A)—

(a) the words “seeking extension of the period mentioned in section 109(1) of this Act” are repealed,

(b) in paragraph (a)(i)—

(i) after “failed” there is inserted “ , or expects to fail, ”,

(ii) the words “in section 109(1)” are repealed.

(5) Subsection (2C) is repealed.

(6) At the end of the section there is inserted—

(4) An application under subsection (2) is to be dealt with by the High Court— (a) in chambers, and (b) unless the Court directs otherwise, without the parties being present. (5) If the High Court extends a period under subsection (2), it must— (a) give reasons for the decision in writing, and (b) give the reasons in ordinary language.

Certain lateness not excusable

91

In section 300A (power of court to excuse procedural irregularities) of the 1995 Act, after subsection (7) there is inserted—

(7A) Subsection (1) does not authorise a court to excuse a failure to do any of the following things timeously— (a) lodge written intimation of intention to appeal in accordance with section 109(1), (b) lodge a note of appeal in accordance with section 110(1)(a), (c) make an application for a stated case under section 176(1), (d) lodge a note of appeal in accordance with section 186(2)(a).

Advocation in solemn proceedings

92

After section 130 of the 1995 Act there is inserted—

(130A) It is not competent to bring under review of the High Court by way of bill of advocation a decision taken at a first diet or a preliminary hearing.

Advocation in summary proceedings

93

After section 191A of the 1995 Act there is inserted—

(191B) It is not competent to bring under review of the Sheriff Appeal Court by way of bill of advocation a decision of the court of first instance that relates to such objection or denial as is mentioned in section 144(4).

Finality of appeal proceedings

94

In subsection (2) of section 124 (finality of proceedings) of the 1995 Act—

(a) for the words “sections 288ZB and 288AA” there is substituted “ section 288AA ”,

(b) the words “a reference under section 288ZB or” are repealed.

Courts reform: spent provisions

95

In schedule 3 to the Courts Reform (Scotland) Act 2014, the following provisions are repealed—

(a) in paragraph 10, sub-paragraphs (4), (5) and (8),

(b) paragraph 22,

SCCRC

References by SCCRC

96

(1) The 1995 Act is amended as follows.

(2) In section 194B, in subsection (1), the words “, subject to section 194DA of this Act,” are repealed.

(3) The title of section 194B becomes “ References by the Commission ”.

(4) In section 194C, subsection (2) is repealed.

(5) Section 194DA is repealed.

PART 6 — MISCELLANEOUS

CHAPTER 1 — PUBLICATION OF PROSECUTORIAL TEST

Publication of prosecutorial test

97

(1) The Lord Advocate must make available to the public a statement setting out in general terms the matters about which a prosecutor requires to be satisfied in order to initiate, and continue with, criminal proceedings in respect of any offence.

(2) The reference in subsection (1) to a prosecutor is to one within the Crown Office and Procurator Fiscal Service.

CHAPTER 2 — SUPPORT FOR VULNERABLE PERSONS

Meaning of appropriate adult support

98

(1) For the purposes of this Chapter, “appropriate adult support” means—

(a) support of the sort mentioned in subsection (3) of section 42 that is provided to a person about whom intimation has been sent under subsection (2) of that section, and

(b) such other support for vulnerable persons in connection with a criminal investigation or criminal proceedings as the Scottish Ministers specify by regulations.

(2) In regulations under subsection (1)(b), the Scottish Ministers may, in particular, specify support by reference to—

(a) the purpose it is to serve,

(b) the description of vulnerable persons to whom it is to be available, and

(3) For the purposes of this section—

“vulnerable person” means a person who, owing to mental disorder, is—unable to understand sufficiently what is happening, orcommunicate effectively,in the context of a criminal investigation or criminal proceedings,

“mental disorder” has the meaning given by section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

(4) The Scottish Ministers may by regulations amend the definitions of “vulnerable person” and “mental disorder” in subsection (3) for the purpose of making them consistent with (respectively) subsections (1)(c) and (5)(a) of section 42.

Responsibility for ensuring availability of appropriate adults

99

The Scottish Ministers may by regulations—

(a) confer on a person the function of ensuring that people are available to provide appropriate adult support—

(i) throughout Scotland, or

(ii) in a particular part of Scotland, and

(b) make provision about how that function may or must be discharged.

Assessment of quality of appropriate adult support

100

The Scottish Ministers may by regulations—

(a) confer on a person the functions of—

(i) assessing the quality of whatever arrangements may be in place to ensure that people are available to provide appropriate adult support, and

(ii) assessing the quality of any appropriate adult support that is provided, and

(b) make provision about how those functions may or must be discharged.

Training for appropriate adults

101

The Scottish Ministers may by regulations—

(a) confer on a person the function of—

(i) giving to people who provide, or wish to provide, appropriate adult support training in how to provide that support,

(ii) giving to other people specified by the Scottish Ministers in the regulations training in how to deal with people who need appropriate adult support, and

(b) make provision about how that function may or must be discharged.

Recommendations from quality assessor and training provider

102

(1) A person upon whom a function has been conferred by virtue of section 100 or 101 may—

(a) make to a provider of appropriate adult support recommendations about the way that appropriate adult support is provided,

(b) make to the Scottish Ministers recommendations about the exercise of their powers under section 61 and the provisions of this Chapter.

(2) A provider of appropriate adult support must have regard to any recommendation made to it under subsection (1)(a).

(3) The Scottish Ministers must have regard to any recommendation made under subsection (1)(b).

(4) In this section, “a provider of appropriate adult support” means a person upon whom the function of ensuring that people are available to provide appropriate adult support has been conferred by virtue of section 99.

Duty to ensure quality assessment takes place

103

If, by virtue of regulations under section 99, a person has the function of ensuring that people are available to provide appropriate adult support, it is the Scottish Ministers' duty to ensure that there is a person discharging the functions mentioned in section 100(a).

Elaboration of regulation-making powers under this Chapter

104

(1) A power under this Chapter to confer a function on a person by regulations may be exercised so as to confer the function, or aspects of the function, on more than one person.

(2) A power under this Chapter to make provision by regulations about how a function may or must be discharged may, in particular, be exercised so as to—

(a) require or allow the person discharging the function to enter into a contract with another person,

(b) require the person discharging the function to have regard to any guidance about the discharge of the function issued by the Scottish Ministers.

(3) The powers under this Chapter to make regulations may be exercised so as to—

(a) make such provision as the Scottish Ministers consider necessary or expedient in consequence of, or for the purpose of giving full effect to, any regulations made in exercise of a power under this Chapter,

(b) modify any enactment (including this Act),

Procedure for making regulations under this Chapter

105

(1) Regulations under this Chapter are subject to the affirmative procedure.

(2) Prior to laying a draft Scottish statutory instrument containing regulations under this Chapter before the Scottish Parliament for approval by resolution, the Scottish Ministers must consult publicly.

Other powers of Ministers unaffected

106

Nothing in this Chapter is to be taken to imply that the powers it gives to the Scottish Ministers to confer functions are the only powers that they have to confer those (or similar) functions.

CHAPTER 3 — NOTIFICATION IF PARENT OF UNDER 18 IMPRISONED

Child’s named person to be notified

107

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

Definition of certain expressions

108

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

CHAPTER 4 — STATEMENTS AND PROCEDURE

Statements by accused

109

(1) After section 261 of the 1995 Act there is inserted—

(261ZA) (1) Evidence of a statement to which this subsection applies is not inadmissible as evidence of any fact contained in the statement on account of the evidence's being hearsay. (2) Subsection (1) applies to a statement made by the accused in the course of the accused's being questioned (whether as a suspect or not) by a constable, or another official, investigating an offence. (3) Subsection (1) does not affect the issue of whether evidence of a statement made by one accused is admissible as evidence in relation to another accused.

(2) The title of section 261 of the 1995 Act becomes “ Statements by co-accused ”.

Use of technology

Live television links

110

(1) After section 288G of the 1995 Act there is inserted—

(288H) (1) Where the court so determines at any time before or at a specified hearing, a detained person is to participate in the hearing by means of a live television link. (2) The court— (a) must give the parties in the case an opportunity to make representations before making a determination under subsection (1), (b) may make such a determination only if it considers that to do so is not contrary to the interests of justice. (3) The court may require a detained person to participate by means of a live television link in any proceedings at a specified hearing or otherwise in the case for the sole purpose of considering whether to make a determination under subsection (1) with respect to a specified hearing. (4) Where a detained person participates in any specified hearing or other proceedings by means of a live television link— (a) a place of detention is, for the purposes of the hearing or other proceedings, deemed to be part of the court-room, and (b) accordingly, the hearing is or other proceedings are deemed to take place in the presence of the detained person. (5) In this section— - “court-room” includes chambers, - “live television link” means live television link between a place of detention and the court-room in which any specified hearing is or other proceedings are to be held or (as the case may be) any specified hearing is or other proceedings are being held. (288I) (1) No evidence as to a charge on any complaint or indictment may be led or presented at a specified hearing in respect of which there is a determination under section 288H(1). (2) The court— (a) may, at any time before or at a specified hearing, revoke a determination under section 288H(1), (b) must do so in relation to a detained person if it considers that it is in the interests of justice for the detained person to appear in person. (3) The court may postpone a specified hearing to a later day if, on the day on which a specified hearing takes place or is due to take place— (a) the court decides not to make a determination under section 288H(1) with respect to the hearing, or (b) the court revokes such a determination under subsection (2). (288J) (1) Except where a postponement under section 288I(3) is while section 21(2) of the Criminal Justice (Scotland) Act 2016 applies to a detained person, the following do not count towards any time limit arising in the person's case if the postponement in the case is to the next day on which the court is sitting— (a) that next day, (b) any intervening Saturday, Sunday or court holiday. (2) Even while section 21(2) of the Criminal Justice (Scotland) Act 2016 applies to a detained person, that section does not prevent a postponement under section 288I(3) in the person's case. (3) In section 288I and this section, “postpone” includes adjourn. (288K) (1) The Lord Justice General may by directions specify types of hearing at the High Court, sheriff court and JP court in which a detained person may participate in accordance with section 288H(1). (2) Directions under subsection (1) may specify types of hearing by reference to— (a) the venues at which they take place, (b) particular places of detention, (c) categories of cases or proceedings to which they relate. (3) Directions under subsection (1) may— (a) vary or revoke earlier such directions, (b) make different provision for different purposes. (4) The validity of any proceedings is not affected by the participation of a detained person by means of a live television link in a hearing that is not a specified hearing. (5) In this section, “hearing” includes any diet or hearing in criminal proceedings which may be held in the presence of an accused, a convicted person or an appellant in the proceedings. (288L) For the purpose of sections 288H to 288K— - “detained person” means person who is— 1. an accused, a convicted person or an appellant in the case to which a specified hearing relates, and 2. imprisoned or otherwise lawfully detained (whether or not in connection with an offence) at any place in Scotland, - “place of detention” means place in which a detained person is imprisoned or detained, - “specified hearing” means hearing of a type specified in directions having effect for the time being under section 288K.

(2) In addition—

(a) in section 117 (presence of appellant or applicant at hearing) of the 1995 Act—

(i) subsection (6) is repealed,

(ii) in subsection (7), for the word “(6)” there is substituted “ (5) ”,

(b) section 80 of the Criminal Justice (Scotland) Act 2003 is repealed.

Electronic proceedings

111

(1) In section 305 (Acts of Adjournal) of the 1995 Act, after subsection (1) there is inserted—

(1A) Subsection (1) above extends to making provision by Act of Adjournal for something to be done in electronic form or by electronic means.

(2) These provisions of the 1995 Act are repealed—

(a) in section 141—

(i) subsection (3A),

(ii) in subsection (5), the words “(including a legible version of an electronic communication)”,

(iii) subsection (5ZA),

(iv) in subsection (5A), paragraph (b) together with the word “or” immediately preceding it,

(v) subsections (6A), (7A) and (7B),

(b) section 303B together with the italic heading immediately preceding it,

(3) In the Criminal Proceedings etc. (Reform) (Scotland) Act 2007, section 42 is repealed.

CHAPTER 5 — AUTHORISATION UNDER PART III OF THE POLICE ACT 1997

Authorisation of persons other than constables

112

In section 108 (interpretation of Part III) of the Police Act 1997, after subsection (1) there is inserted—

(1A) A reference in this Part to a staff officer of the Police Investigations and Review Commissioner is to any person who— (a) is a member of the Commissioner's staff appointed under paragraph 7A of schedule 4 to the Police, Public Order and Criminal Justice (Scotland) Act 2006, or (b) is a member of the Commissioner's staff appointed under paragraph 7 of that schedule to whom paragraph 7B(2) of that schedule applies.

CHAPTER 6 — POLICE NEGOTIATING BOARD FOR SCOTLAND

Establishment and functions

113

(1) After section 55 of the Police and Fire Reform (Scotland) Act 2012 there is inserted—

(55A) (1) There is established a body to be known as the Police Negotiating Board for Scotland. (2) Schedule 2A makes further provision about the Police Negotiating Board for Scotland. (3) In this Chapter, the references to the PNBS are to the Police Negotiating Board for Scotland. (55B) (1) The PNBS may make representations to the Scottish Ministers about— (a) any draft regulations shared with it under section 54(1)(a), (b) any draft determination of a kind mentioned in subsection (2), (c) the matters mentioned in subsection (4) generally. (2) The draft determination referred to in subsection (1)(b) is a draft of a determination to be made by the Scottish Ministers— (a) in relation to a matter mentioned in subsection (4), and (b) by virtue of regulations made under section 48. (3) The Scottish Ministers may, after consulting the chairperson of the PNBS— (a) require the PNBS to make representations under subsection (1), (b) set or extend a time limit within which it must do so. (4) The matters referred to in subsections (1)(c) and (2)(a) are the following matters in relation to constables (other than special constables) and police cadets— (a) pay, allowances and expenses, (b) public holidays and leave, (c) hours of duty. (55C) (1) The PNBS may make representations to the Scottish Ministers about— (a) any draft regulations shared with it under section 54(2), (b) the matters mentioned in subsection (2) generally. (2) The matters referred to in subsection (1)(b) are matters relating to the governance, administration and conditions of service of constables (other than special constables) and police cadets. (3) But those matters do not include the matters mentioned in section 55B(4). (55D) (1) If representations under section 55B(1) are made in terms settled through arbitration in accordance with the PNBS's constitution, the Scottish Ministers must take all reasonable steps appearing to them to be necessary for giving effect to those representations. (2) However, this— (a) requires the Scottish Ministers to take such steps only in qualifying cases (see paragraph 8(2) of schedule 2A), (b) does not require the Scottish Ministers— (i) to take such steps in relation to representations that are no longer being pursued by the PNBS, or (ii) where such steps would comprise or include the making of regulations under section 48, to make regulations under that section more than once with respect to the same representations. (55E) (1) The PNBS must, as soon as practicable after the end of each reporting year, prepare a report on how it has carried out its functions during that year. (2) The PNBS must— (a) give a copy of each report to the Scottish Ministers, (b) publish each report in such manner as it considers appropriate. (3) In this Chapter, “reporting year” is as defined in the PNBS's constitution.

(2) In section 54 (consultation on regulations) of the Police and Fire Reform (Scotland) Act 2012, in subsection (1)—

(a) for the words from “61(1)” to “pensions)” there is substituted “ 55B(4) ”,

(b) in paragraph (a), for the words “the United Kingdom” there is substituted “ Scotland ”.

(3) In section 125 (subordinate legislation) of the Police and Fire Reform (Scotland) Act 2012, after subsection (3) there is inserted—

(3A) Regulations under paragraph 5(7) of schedule 2A are subject to the affirmative procedure if they include provisions of the kind mentioned in paragraph 7(2) or 8(2) of that schedule.

(4) After schedule 2 to the Police and Fire Reform (Scotland) Act 2012 there is inserted (as schedule 2A to that Act) the schedule set out in schedule 3.

Consequential and transitional

114

(1) In connection with section 113—

(a) in schedule 1 to the Freedom of Information (Scotland) Act 2002, after paragraph 50A there is inserted—

(50B) The Police Negotiating Board for Scotland.

(b) in schedule 2 to the Public Appointments and Public Bodies etc. (Scotland) Act 2003, at the appropriate place under the heading referring to offices there is inserted— “ Chairperson of the Police Negotiating Board for Scotland ”.

(2) On the coming into force of section 113—

(a) a person then holding office as the chairman of the Police Negotiating Board for the United Kingdom by virtue of section 61(2) of the Police Act 1996 is to be regarded as if appointed as the chairperson of the Police Negotiating Board for Scotland under paragraph 2(2) of schedule 2A to the Police and Fire Reform (Scotland) Act 2012,

(b) any agreements then extant within or involving the Police Negotiating Board for the United Kingdom (so far as relating to the Police Service of Scotland) of the kind for which Chapter 8A of Part 1 of the Police and Fire Reform (Scotland) Act 2012 includes provision are to be regarded as if made as agreements within or involving the Police Negotiating Board for Scotland by virtue of that Chapter.

PART 7 — FINAL PROVISIONS

Ancillary and definition

Ancillary regulations

115

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

(2) Regulations under this section—

(a) are subject to the affirmative procedure if they add to, replace or omit any part of the text of an Act (including this Act),

(b) otherwise, are subject to the negative procedure.

Meaning of “the 1995 Act”

116

In this Act, “the 1995 Act” means the Criminal Procedure (Scotland) Act 1995.

Commencement and short title

Commencement

117

(1) The following provisions come into force on the day after Royal Assent—

(a) sections 71 and 73 to 77,

(b) this Part.

(2) The other provisions of this Act come into force on such day as the Scottish Ministers may by order appoint.

(3) An order under subsection (2) may include transitional, transitory or saving provision.

Short title

118

The short title of this Act is the Criminal Justice (Scotland) Act 2016.

SCHEDULE 1

Offence of breaching condition

1

(1) A person commits an offence if, without reasonable excuse, the person breaches a liberation condition by reason of—

(a) failing to comply with an investigative liberation condition,

(b) failing to appear at court as required by the terms of an undertaking, or

(2) Sub-paragraph (1) does not apply where (and to the extent that) a person breaches a liberation condition by reason of committing an offence (in which case see paragraph 3).

(3) It is competent to amend a complaint to include an additional charge of an offence under sub-paragraph (1) at any time before the trial of a person in summary proceedings for—

(a) the original offence, or

(b) an offence arising from the same circumstances as the original offence.

(4) In sub-paragraph (3), “the original offence” is the offence in connection with which—

(a) an investigative liberation condition was imposed, or

(b) an undertaking was given.

Sentencing for the offence

2

(1) A person who commits an offence under paragraph 1(1) is liable on summary conviction to—

(a) a fine not exceeding level 3 on the standard scale, or

(b) imprisonment for a period—

(i) where conviction is in the justice of the peace court, not exceeding 60 days,

(ii) where conviction is in the sheriff court, not exceeding 12 months.

(2) A penalty under sub-paragraph (1) may be imposed in addition to any other penalty which it is competent for the court to impose, even if the total of penalties imposed exceeds the maximum penalty which it is competent to impose in respect of the original offence.

(3) The reference in sub-paragraph (2) to a penalty being imposed in addition to another penalty means, in the case of sentences of imprisonment or detention—

(a) where the sentences are imposed at the same time (whether or not in relation to the same complaint), framing the sentences so that they have effect consecutively,

(b) where the sentences are imposed at different times, framing the sentence imposed later so that (if the earlier sentence has not been served) the later sentence has effect consecutive to the earlier sentence.

(4) Sub-paragraph (3)(b) is subject to section 204A (restriction on consecutive sentences for released prisoners) of the 1995 Act.

(5) Where a person is to be sentenced in respect of an offence under paragraph 1(1), the court may remit the person for sentence in respect of it to any court which is considering the original offence.

(6) In sub-paragraphs (2) and (5), “the original offence” is the offence in connection with which—

(a) the investigative liberation condition was imposed, or

(b) the undertaking was given.

Breach by committing offence

3

(1) This paragraph applies—

(a) where (and to the extent that) a person breaches a liberation condition by reason of committing an offence (“offence O”), but

(b) only if the fact that offence O was committed while the person was subject to the liberation condition is specified in the complaint or indictment.

(2) In determining the penalty for offence O, the court must have regard—

(a) to the fact that offence O was committed in breach of a liberation condition,

(b) if the breach is by reason of the person's failure to comply with the terms of an investigative liberation condition, to the matters mentioned in paragraph 4(1),

(c) if the breach is by reason of the person's failure to comply with the terms of an undertaking other than the requirement to appear at court, to the matters mentioned in paragraph 5(1).

(3) Where the maximum penalty in respect of offence O is specified by (or by virtue of) an enactment, the maximum penalty is increased—

(a) where it is a fine, by the amount equivalent to level 3 on the standard scale,

(b) where it is a period of imprisonment—

(i) as respects conviction in the justice of the peace court, by 60 days,

(ii) as respects conviction in the sheriff court or the High Court, by 6 months.

(4) The maximum penalty is increased by sub-paragraph (3) even if the penalty as so increased exceeds the penalty which it would otherwise be competent for the court to impose.

(5) In imposing a penalty in respect of offence O, the court must state—

(a) where the penalty is different from that which the court would have imposed had sub-paragraph (2) not applied, the extent of and the reasons for that difference,

(b) otherwise, the reasons for there being no such difference.

Matters for paragraph 3(2)(b)

4

(1) For the purpose of paragraph 3(2)(b), the matters are—

(a) the number of offences in connection with which the person was subject to investigative liberation conditions when offence O was committed,

(b) any previous conviction the person has for an offence under paragraph 1(1)(a),

(c) the extent to which the sentence or disposal in respect of any previous conviction differed, by virtue of paragraph 3(2), from that which the court would have imposed but for that paragraph.

(2) In sub-paragraph (1)—

(a) in paragraph (b), the reference to any previous conviction includes any previous conviction by a court in England and Wales, Northern Ireland or a member State of the European Union (other than the United Kingdom) for an offence that is equivalent to an offence under paragraph 1(1)(a),

(b) in paragraph (c), the references to paragraph 3(2) are to be read, in relation to a previous conviction by a court referred to in paragraph (a) of this sub-paragraph, as references to any provision that is equivalent to paragraph 3(2).

(3) Any issue of equivalence arising under sub-paragraph (2)(a) or (b) is for the court to determine.

Matters for paragraph 3(2)(c)

5

(1) For the purpose of paragraph 3(2)(c), the matters are—

(a) the number of undertakings to which the person was subject when offence O was committed,

(b) any previous conviction the person has for an offence under paragraph 1(1)(c),

(c) the extent to which the sentence or disposal in respect of any previous conviction differed, by virtue of paragraph 3(2), from that which the court would have imposed but for that paragraph.

(2) In sub-paragraph (1)—

(a) in paragraph (b), the reference to any previous conviction includes any previous conviction by a court in England and Wales, Northern Ireland or a member State of the European Union (other than the United Kingdom) for an offence that is equivalent to an offence under paragraph 1(1)(c),

(b) in paragraph (c), the references to paragraph 3(2) are to be read, in relation to a previous conviction by a court referred to in paragraph (a) of this sub-paragraph, as references to any provision that is equivalent to paragraph 3(2).

(3) Any issue of equivalence arising under sub-paragraph (2)(a) or (b) is for the court to determine.

Evidential presumptions

6

(1) In any proceedings in relation to an offence under paragraph 1(1), the facts mentioned in sub-paragraph (2) are to be held as admitted unless challenged by preliminary objection before the person's plea is recorded.

(2) The facts are—

(a) that the person breached an undertaking by reason of failing to appear at court as required by the terms of the undertaking,

(b) that the person was subject to a particular—

(i) investigative liberation condition, or

(ii) condition under the terms of an undertaking.

(3) In proceedings to which sub-paragraph (4) applies—

(a) something in writing, purporting to impose investigative liberation conditions and bearing to be signed by a constable, is sufficient evidence of the terms of the investigative liberation conditions imposed under section 16(2),

(b) something in writing, purporting to be an undertaking and bearing to be signed by the person said to have given it, is sufficient evidence of the terms of the undertaking at the time that it was given,

(c) a document purporting to be a notice (or a copy of a notice) under section 18, 27 or 28, is sufficient evidence of the terms of the notice.

(4) This sub-paragraph applies to proceedings—

(a) in relation to an offence under paragraph 1(1), or

(b) in which the fact mentioned in paragraph 3(1)(b) is specified in the complaint or indictment.

(5) In proceedings in which the fact mentioned in paragraph 3(1)(b) is specified in the complaint or indictment, that fact is to be held as admitted unless challenged—

(a) in summary proceedings, by preliminary objection before the person's plea is recorded, or

(b) in the case of proceedings on indictment, by giving notice of a preliminary objection in accordance with section 71(2) or 72(6)(b)(i) of the 1995 Act.

Interpretation

7

In this schedule—

(a) references to an investigative liberation condition are to a condition imposed under section 16(2) or 19(3)(b) subject to any modification by notice under section 18(1) or (5)(a),

(b) references to an undertaking are to an undertaking given under section 25(2)(a),

(i) notice under section 27(1), or

(ii) the sheriff under section 30(3)(b).

SCHEDULE 2

PART 1 — PROVISIONS AS TO ARREST

Criminal Procedure (Scotland) Act 1995

1

The 1995 Act is amended as follows.

2

These provisions are repealed—

(a) in section 13, subsection (7),

(b) section 21.

3

(1) In section 234A, subsections (4A) and (4B) are repealed.

(2) In subsection (11) of section 234AA, for the words from the beginning to “those sections apply” there is substituted “ Section 9 (breach of orders) of the Antisocial Behaviour etc. (Scotland) Act 2004 applies in relation to antisocial behaviour orders made under this section as that section applies ”.

Miscellaneous enactments

4

In section 4 of the Trespass (Scotland) Act 1865, for the words from the beginning to “every” in the last place where it occurs there is substituted “ A ”.

5

In subsection (3) of section 1 of the Public Meeting Act 1908, the words from “, and if he refuses” to the end are repealed.

6

In the Firearms Act 1968, section 50 is repealed.

7

In the Civic Government (Scotland) Act 1982—

(a) in section 59, subsections (1), (2) and (5) are repealed,

(b) in subsection (3), for the words “he can be delivered into the custody” there is substituted “ the arrival ”,

(d) in subsection (1) of section 80, for the words from “and taken” to the end there is substituted “ by a constable ”.

8

In the Child Abduction Act 1984, section 7 is repealed.

9

In section 11 of the Protection of Badgers Act 1992, paragraph (c) of subsection (1) is repealed.

10

In the Criminal Justice and Public Order Act 1994, section 60B is repealed.

11

In section 8B of the Olympic Symbol etc. (Protection) Act 1995, subsections (2) and (3) are repealed.

12

In the Criminal Law (Consolidation) (Scotland) Act 1995—

(a) in section 7, subsection (4) is repealed,

(b) in section 47, subsection (3) is repealed,

(d) in section 50, subsections (3) and (5) are repealed.

13

In the Deer (Scotland) Act 1996, section 28 is repealed.

14

In section 61 of the Crime and Punishment (Scotland) Act 1997, subsection (5) is repealed.

15

In section 7 of the Protection of Wild Mammals (Scotland) Act 2002, paragraph (a) of subsection (1) is repealed.

16

In the Fireworks Act 2003—

(a) in section 11A, subsection (6) is repealed,

(b) section 11B is repealed.

17

In section 307 of the Criminal Justice Act 2003, subsection (4) is repealed.

18

In the Antisocial Behaviour etc. (Scotland) Act 2004—

(a) section 11 is repealed,

(b) in section 22, subsections (3) and (4) are repealed,

19

In section 130 of the Serious Organised Crime and Police Act 2005, subsection (3) is repealed.

20

In the Animal Health and Welfare (Scotland) Act 2006, in schedule 1—

(a) paragraph 16 is repealed,

(b) in paragraph 18(b)(i), the words “except paragraph 16” are repealed.

21

In the Prostitution (Public Places) (Scotland) Act 2007, section 2 is repealed.

22

In section 32 of the Glasgow Commonwealth Games Act 2008, subsections (3) and (4) are repealed.

23

In section 7 of the Tobacco and Primary Medical Services (Scotland) Act 2010, subsection (4) is repealed.

24

In each of sections 169(2) and 170(2) of the Children's Hearings (Scotland) Act 2011, the words “arrested without warrant and” are repealed.

25

In section 9 of the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011, subsections (2) and (3) are repealed.

PART 2 — FURTHER MODIFICATIONS

The 1995 Act

26

The 1995 Act is amended as follows.

27

These provisions are repealed—

(a) sections 14 to 17A,

(b) sections 22 to 22ZB (together with the italic heading immediately preceding section 22),

(d) in section 135, subsection (3).

28

(1) In section 18—

(a) in subsection (1), the words “or is detained under section 14(1) of this Act” are repealed,

(b) in subsection (2), the words “or detained” are repealed.

(2) In subsection (2)(a) of section 18B, for the words “under arrest or being detained” there is substituted “ in custody ”.

(3) In section 18D—

(a) in subsection (2)(a), the words “or detained” are repealed,

(b) in subsection (2)(b), for the words “under arrest or being detained” there is substituted “ in custody ”.

(4) In subsection (8)(b) of section 19AA, the words “or detention under section 14(1) of this Act” are repealed.

29

In section 28—

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

(1ZA) Where— (a) a constable who is not in uniform arrests a person under subsection (1), and (b) the person asks to see the constable's identification, the constable must show identification to the person as soon as reasonably practicable.

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

(3A) If— (a) a person is in custody only by virtue of subsection (1) or (1A), and (b) in the opinion of a constable there are no reasonable grounds for suspecting that the person has broken, or is likely to break, a condition imposed on the person's bail, the person must be released from custody immediately. (3B) An accused is deemed to be brought before a court under subsection (2) or (3) if the accused appears before it by means of a live television link (by virtue of a determination by the court that the person is to do so by such means).

30

After section 28 there is inserted—

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